Imágenes de páginas

to read the present act of Congress, first enacted in which department of the government the guaranty part in 1792, repeated in 1795, enlarged in 1807, and and the protection are to come depends upon other now embodied in section 5297 of the Revised Statutes, considerations. The Constitution itself has not left as follows:

the matter in doubt. Whenever a particular depart

ment is clothed with an authority or charged with a "In case of an insurrection in any State, against the

duty, the language is explicit, the department is mengovernment thereof, it shall be lawful for the President, on application of the legislature of such

tioned, and the authority or duty is specified. When State, or of the executive, when the legislature cannot no particular department is mentioned, the authority be convened, to call forth such lumber of the militia

and the duty are devolved upon the legislature, under of any other State or States, which may be applied for, as he deems suficient to suppress such insurrection;

that clause which gives Congress power to pass all laws or, on like application, to employ, for the same pur- | necessary or proper for carrying into effect any of the poses, such part of the land or naval forces of the powers vested in the government of the United States, United States as he deems necessary."

This construction accords with the generally reIt shall be lawful, says the act. Was it lawful

ceived theory of our government. Nobody has ever yet before? If so, the enactment was senseless. The act

supposed, or if he has foolisbly supposed, has been assumes that it is the province of Congress to provide

rash enough to say that the President has exclusive for the execution of the guarantees promised in the

authority, or any authority, to decide whether a State fourth section of the fourth article, and that Congress

has a republican form of government, yet the language can control the President in the employment of the

of the clause gives as much authority to guarantee a army. The proviso inserted by the IIouse, iu 1877,

particular form of government as it does to protect was but a partial repeal of this statute. But, inas

against domestic violence. much as, in strange forgetfulness of the past, the posi

In reality, no authority is anywhere given to any tion of the Senate has been defended, upon the rea

Federal officer to decide upon the title of any State sons stated by senators, and party conventions, with

officer except as an incident and necessary preliminary the party press, bave repeated the argument, if argu to the exercise of some other power. The incident in ment it may be called, it may serve a useful purpose

such case depeuds upon the principal, and the validity to go more fully into the question.

or invalidity of the former is determined by the latIf there be any political doctrine, which more than ter. Wheu a body claiming to be the legislature of a another is the corner-stone of our system of State and State, or a person claiming to be governor, applies, Federal goverument, it is the complete independence under the 4th section of the 4th article, for protection of each in regard to the other. Congress cannot even of the State against domestic violence, the Federal tax the salary of a State officer, for the reason that it authority, to which the application is made, must of cannot interfere with the free movement of State ma necessity decide or assume that such body is the legischinery. Each government moves in its own inde lature, or such person the governor. This necessity pendent orbit. There is one instance in which the affects all Federal officers, from the highest to the Federal government is recruited from the State gov lowest. If a general of the army is directed to aid the ernments, and that is in the choice of Federal senators mayor of a city with his command, the general must by State legislatures. And there is another instance find out who is mayor. Any citizen may be placed in which the Federal government is authorized to in- under a like necessity, of deciding whether one who terfere directly with the State governments, and that assumes to hold an official position does really hold it; is under the fourth section of the fourth article. But but that is not because it is the citizen's province to the governor of a State is as much independent of decide questions of title to office, but because he must the President as the President is independent of the | assume a particular person to be the officer, in fact or governor. When Washington, as first President, | law, before he obeys him. This assumption he adopts, visited Massachusetts, Governor Hancock made it a of course at his peril. So that the question, after all, point of etiquette that the President should call on is this, which department of the government decides him, as having the precedence in his own State, a and acts for the United States in guaranteeing repubpoint which he afterward yielded; but the incident | lican governments to the States, or in protecting them shows that, in the days of the Fathers, the governor against violence from abroad or at home? To this of a State, on his own ground, was considered rather question there can be, it seems to me, but one answer; as the equal than the subordinate of the President, it is the legislative department, the Congress. who was after all “primus inter parés."

This is the natural construction of the language of The one instance, and the only one permitted by the Constitution. The United States are to guarantee the Constitution, of direct interference with state gov. and the United States are to protect. The executive eriments or State officers, is that which I have just department is not charged with the duty; neither is mentioned. These are the words of the Constitution: the judicial department. The legislative department, “The United States shall guaranty to every State in however, has authority to pass all laws necessary for this Union a republican form of government, and shall carrying into effect a power vested in the goverument, protect each of them against invasion; and on appli and not specially entrusted to another department. cation of the legislature or of the executive (when the Not only does the text of the Constitution lead us legislature cannot be convened) against domestic vio- | naturally to this conclusion, but every recognized lence.” This is the clause that is supposed to give the auxiliary of interpretation helps us to the same result, President the exclusive authority to decide between such as the theory of our government, the history of two claimants which of them is the rightful or actual the Constitution, the acts of Congress in pursuance of officer of a State. Yet it gives the President no power it, and the decisions of the courts. whatever. It does not even mention him. It is not Neither the framers of the Constitution nor the in that part of the Constitution which treats of the people who accepted it could have dreamed of giving executive department. “The United States " -- the such a power to the President. Authorizing him, connation-"shall guaranty" and "shall protect." From ! trary to the will of Congress, to execute the 4th sec

tion of the 4th article, would have been making him a to suppress combinations therein too powerful to virtual dictator. If, for example, he were to affirm be suppressed by the ordinary course of judicial prothat the ('onstitution of Massachusetts is not republic ceedings, provided the exigency was notified to the can, and should undertake, for that reason, to displace President, by an associate justice or the district judge, the existing legislature, or send a commission to Bos and furthermore in case the militia of such State reton to organize a new one, would there be no remedy fused, or were insufficient, he might resort to the militia but forcible resistance ?

of other States, “if the legislature of the United The history of the clause is significant. The general States be not in session." This act was limited to two plan of the Constitution was first brought forward in years and the end of the session next thereafter. the Convention in a series of resolutions proposed by The second act was passed in 1795 authorizing the Mr. Randolph, on behalf of the delegates from Vir | employment of the militia, and a third act passed in ginia. Those resolutions declared that the national | 1770 authorized the employment of the Army and legislature “ought to be empowered to enjoy the legis Navy. These different provisions now stand in the lative rights vested in the Congress by the confedera Revised Statutes in section 5:297, already quoted. tion, and moreover, to legislate in all cases to which The enactment assumes, as I have pointed out, that the separate States are incompetent,” and also, “that the whole subject of protecting a State against domesa republican government and the territory of each tic violence, is within the competence of Congress, State, except in the instance of a voluntary junction which alone can give authority to interfere, and can of government and territory, ought to be guaranteed prescribe to that end the use of such means as it pleases. by the United States to each State." Mr. Charles Thus the first act made it a condition, in a certain conPinckney's plan enumerated among the powers to be tingency, that there should be a precedent notification granted to Congress, that “to subdue a rebellion in from a judge of the United States, and in another conany State on application of its legislature," and pro tingency gave authority to act only in the recess of posed the following as a separate article: “On the Congress, and was moreover limited in its duration to application of the legislature of a State, the United | a short period. If the Congress of

a short period. If the Congress of 1792 was compeStates shall protect it against domestic violence." || tent to withhold the power from President WashingWhen the resolution in Mr. Randolph's plan came to ton, after the experience of two years, surely the Conbe considered in Committee of the Whole, it was gress of 1877 is competent to withhold it from any changed to the following, and so reported to ihe com President, after the experience of the last eight years. mittee: "Resolved, That a republican constitution, and The present act of Congress limits the authority of its existing laws, ought to be guaranteed to each State the President to the militia of States, other than that by the United States.” This was changed in the con where the insurrection takes place, upon the idea no vention to the following: “Resolved, That a republican doubt that the militia of that State are to be used by form of government shall be guaranteed to each State, its own lawful authorities, and the act also requires and that each State shall be protected against foreign the President to issue his proclamation to the insurgand domestic violence," and thus referred to the com ents, at the same time that he uses the forces placed mittee of detail to prepare and report a Constitution. under his control. This committee made a report, in which among the The judicial history of the United States leads to powers of Congress, was that “ to subdue a rebellion the same conclusion. In the controversy growing out in any State, on the application of its legislature," and of the domestic troubles of Rhode Island, a case there was a separate article as follows: "The United (Luther v. Borden) was brought to the Supreme Court States shall guarantee to each State a republican form of the United States. The right of Federal interferof government, and shall protect each State against ence in those troubles was thus brought in question, foreign invasions, and on application of its legislature, and the court pronounced an opinion, of which the against domestic violence.” This was afterward following are portions: changed by striking out the word “foreign,” and in

“The fourth section of the fourth article of the serting the words “or executive,' after legislature,

(oustitutiou of the United States provides that the and so sent to the committee of revision, by which it United States shall guarantee to any State in this was reported as it now stands in the Constitution, ex- Union a republican form of government, and shall cept that the words “ where the legislature cannot be

protect each of them against invasion, and on the ap

plication of the legislature or of the executive (when convened,” were afterward inserted by the conven the legislature cannot be convened) against domestic tion. Mr. Randolph, however, though the general violence. plan, first submitted by him, was the basis of the Con

"Under this article of the Constitution, it rests with

Congress to decide what government is the established stitution as adopted, refused to sign it, for several rea

one in a State. For as the United States guarantee sons, one of which was “the authority of the General to each State a republican government, Congress must Legislature to interpose on the application of the necessarily decide what government is established in

the State before it can determine whether it is repubexecutives of the States.” It is clear from this history

lican or not. And when the senators and representathat the convention did not mean to commit the exe tives of a State are admitted into the councils of the cution of the guaranty to any other authority than Union, the authority of the government under which

they are appointed, as well as its republican character, the United States in Congress assembled.

is recognized by the proper constitutional authority, The legislative history of the United States follows

and its decision is binding on every other department and confirms this theory. The first act respecting of the government, and could not be questioned in a iusurrection in a State was passed in 1792, and that judicial tribunal." * * *

"So, too, as relates to the clause in the above-menprovided in the first section, that whenever the

tioned article of the Constitution, providing for cases United States should be invaded, or be in immi of domestic violence. It rested with Congress, too, nent danger of invasion from any foreign nation or to determine upon the means proper to be adopted to Indian tribe, it should be lawful for the President

fulfill this guarantee. They might, if they had deemed

it most advisable to do so, have placed in the power to call forth “ the militia,” and in the second sec

of a court to decide when the contingency bad haption, that he might call out the militia of a State | pened which required the Federal government to in

terfere. But Congress thought otherwise, and no declaration just quoted. He had bardly finished dedoubt wisely; and by the act of February 28, 1795, claring that an attempt of the President to exercise provided that in case of an insurrection in any State against the government thereof, it shall be lawful for

the power of judging who is elected governor of a the President of the United States, on application of State would be a plain act of usurpation, when he took the legislature of such State or of the executive (when pains to say, that if he had been President instead of the legislature cannot be convened), to call forth such

Grant, he would have “recognizedPackard as govnumber of the militia of any other State or States, as may be applied for, as he may judge sufficient to sup

ernor of Louisiana, "and sustained him with the full press such insurrection.'

power of the general government.” What is the differ"By this act the power of deciding whether the exi

ence in practice between “recognize” and “decide?!! gency had arisen upon which the government of the United States is bound to interfere, is given to the

Who decided in favor of Packard as governor, that President. He is to act upon the application of the Grant or Sherman should recognize him? Was Packard legislature or of the executive, and consequently he in possession of the office any more than Nichols? The must determine what body of men constitute the legislature, and who is the governor, before he can act.

power to recognize is the power to decide; and the The fact that both parties claim the right to the Supreme Court appears to be of that opinion, accord. government cannot alter the case, for both cannot be ing to the passage which has just been quoted. Give entitled to it. If there is an armed conflict, like the

any person the right of recognizing whom he will one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection

to be governor and of following up the recognition against the lawful government. And the President with the army, and he need not care who may uudermust, of necessity, decide which is the government

take the decision. Whenever there are two claimants and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by

of the same office, each of course will seek to fortify the act of Congress."

his claim by evidence of title and by the decision of

some authority in his favor; the power to determine And lastly the same doctrine is now conceded by which has the better decision is in no degree different the present republican executive department. In from the power to decide, for all practical purposes, a speech delivered before an Ohio audience, within a where lies the title. Does not every schoolboy, who month, by Mr. Sherman, the Secretary of the Treas has intelligence enough to read the shameful history ury, he takes occasion to say that “The President is of the last eight years' misrule in South Carolina, not made the judge of who is elected governor of a Florida and Louisiana, kuow full well that, during all State; an attempt to exercise such power would be a | these years, Grant's heavy sword has been the only plain act of usurpation.” And in an article put forth effective title to office in those trampled States ? with great parade under the title of the “President's If there be then really no authority but an act of Southern Policy," and published in the present num Congress for the President's interference with the ber of the International Revieu, if not in the name, questicns, which is the lawful government, and who yet with the evident sanction of President Hayes, it are the lawful governors of a State, can there be any is declared that “it is to Congress and not to the doubt, that the intervention of the army in these quesPresident of the United States, that each and all of tions, against the will of Congress, would be a plain the obligations defined and declared by the fourth | usurpation? If the acts of 1795 and 1807, now re-ensection of article four of the Constitution are in the acted in the Revised Statutes, were repealed, the power first instance addressed, the conduct of the executive to protect the lawful governors or goverument would being controlled at every step by the necessity for be withdrawn from the President and remitted to Federal legislation, with respect to the exigencies to Congress. In that case it could not possibly be constibe met, the means to be employed, the method of pro tutional for the President to support with the army a cedure, and therefore confined and limited solely to | person whom Congress had declared not to be governor. the execution of the laws pertaining to the subject. It could not be lawful for him to use the pational forces In other words: here, as elsewhere, and under all cir. in aid of a usurper. The President could not oppose, cumstances, the duty of the President of the United with an armed body, the execution of a decision of States is simply to take care that the laws are faith Congress, any more than he could order out the troops fully executed.' His only sanction for participating at to resist the execution of a judgment of the Supreme all, in the discharge of these constitutional obligations, Court. The Constitution is not a patchwork of conbeing found in the fact that Congress bas enacted in tradictions. Its different parts were not left thus to advance the requisite legislation in furtherance of their counteract each other. faithful fulfillment, the act of 1795, with such enlarge It cannot be necessary to pursue the argument ment as its provisions have since received, being the further, in order to show that the claim of the Senwarrant to-day for whatever of executive action the ate, in its present controversy with the House, is President may direct for this purpose.'

untenable. The act of 1795 was probably never inWe bave thus all the great departments of the Fed tended to apply to the case of a disputed State goveral government, the legislative, judicial and execu ernment, or to make the President arbiter between tive, agreeing, that the execution of the guarantees contending parties, each claiming to have elected its mentioned in the fourth section of the fourth article candidates to established offices; but inasmuch as it is, by the Constitution, devolved upon Congress. has been so interpreted, it is time for Congress to in

I have dwelt thus long upon the question of the terpose, and take to itself a power so liable to abuse, President's right to determine who are and who are and so grievously abused. not the rightful or actual officers of a State; not be Although the discussion of the question between the cause there is any inherent difficulty in the question, Senate and the House does not necessarily involve a but because the answer really disposes of the point at consideration of the general relations of the President issue between the Senate and the House.

to the army, yet it leads naturally to it. And, with Before I pass from the subject, however, I must call your leave, I will discuss that subject in another letter. attention to an observation of Mr. Sherman in his NEW YORK, Sept. 4, 1877. Ohio speech that appears to me inconsistent with his


had no knowledge of any agreement to indemnify. NOTES OF RECENT DECISIONS.

Sup. Ct., Pennsylvania, Feb. 5, 1877. Clark v. Adams. Admiralty practice: proceedings in rem.-Proceed Suretyship: forging of prior surety's name will not ings in rem in admiralty cannot be instituted by a

discharge surety.-The forgery of the name of a prior party against an undivided interest of an owner in a surety will not discharge a subsequent surety, even vessel. U. S. Dist. Ct., N. D. Ohio. Manhattan Fire though the latter signs his name because of the name Ins. Co. v. Schooner Breed (Chic. Leg. News).

of the former being already attached. As some one Caveat emptor: sale of letlers patent.- Where the must be a loser by the deceit, it is more reasonable plaintiff merely sells by a written assignment all his that he who puts confidence in the deceiver should be right, title and interest in certain letters patent to de- a loser rather than a stranger, or a payee knowing fendant, that is no assertion that he has a good title. nothing of the deceit practiced among the co-makers and is no defense in an action by plaintiff against de of a note. Seeley v. The People, 27 III. 173, overruled. fendant for the balance of the purchase-money. But Sup. ('t., Illinois, June 22, 1877. Stoner v. Milliken. an offer by defendant to prove that the plaintiff at the Taxation : tax paid by reason of threats of litigation, time of the sale represented himself to be the owner etc., not recorerable back.--A tax paid by reason of of one-half the patent right which he then sold, threats of litigation, or the apprehension of the levy whereas in fact he had previously sold his entire in of distress warrants, cannot on this ground be recovterest, should be admitted. Sup. Ct., Pennsylvania, ered, although the levy and tax was illegal, there beMay 7, 1877. Krumbaar v. Birch.

ing no fraud or mistake of facts, but only mistake as Constitutional law: special legislation - The act of to legal liability. A State or city may and ought to the legislature of 1875 authorizing the institution of refund a tax so paid. Sup. Ct., Tennessee, May 5, suits in the State courts, by municipal corporations 1877. Lea v. City of Memphis (Tenn. Leg. Rep.). with a population of 35,000 or more, without giving Will: construction of : remote bequests.-By a clause boud for costs, is repugnant to article 11, section 8, of | of a will testator bequeathed to Francis A. Hall and the constitution, which declares that the legislature | Henry Austin Whitney $5,000 in trust, and that “the shall have “no power to suspend any general law for the | whole shall form a fund which shall properly be inbenetit of any particular individual, nor to pass any vested, and to accumulate until my said grandchildren law for the benefit of individuals inconsistent with last mentioned respectively attain the age of thirtythe general laws of the land,” and is, therefore, void. | five years, when a proportionate part of said fund and Sup. Ct., Tennessee, May 12, 1877. City of Memphis v. accumulation (dividing the number of said grandFisher (Tenn. L. Rep.).

children then living who shall not have received their Dedication : to city for street : non-user: reversion. share) is to be paid over to each of them; and in case When a clause in a deed dedicating land to the city of the death of the last beneficiary, before attaining for the purposes of a street, provided that if the street the age of thirty-five years, I direct that the remainshould be abandoned or vacated, the premises should der of said fund and accumulation be considered as revert to the present owners or their assigns, held, that part of the residue of my estate, and be subject to the on a vacation of such street by the city, the premises disposition of the same heretofore made." Held, that reverted to those deriving title from the original | the bequest of $5,000 to Francis A. Hall and Henry grantor. Held, that the fee in the street, retained by Austin Whitney to accumulate for the benefit of the such provision in the deed, could not be divested and testator's grandchildren was void for remoteness, and transferred to adjacent owners by direct legislative the bequest should go to the residuary legatee. Sup. action. Sup. Ct., Illinois, June 22, 1877. Helm v. Jud. Ct., Massachusetts, Sept. 7, 1877. Hall v. Hall. Webster (Chic. Leg. News).

Statute of frauds : promise to answer for the debt of PRIVILEGED COMMUNICATIONS – WORDS another: when.-An agreement made by the vendee

of lands to pay part of the purchase-money to a cred-
itor 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, Juue 2, 1876. Mil-

MAGRATH V. Finn. ler v. Stovall (Tenn. Leg. Rep.).

Words spoken by a clergyman from the pulpit concerning Statute of limitations: revival of debt.-A promise to

a parishioner, though in good faith, and for a commendpay “all I owe you" is not sufficient to revive a debt able purpose, are not privileged. barred by the statute of limitations, in that it does THE summons and complaint contained three counts, not fix the amount of the balance due either directly T the first of which was as follows: “That the deor by reference to something by which the amount can fendant falsely and maliciously spoke of the plaintiff be definitely ascertained. Sup. Ct., Pennsylvania, the words following – that is to say (setting out the Jan. 26, 1877. Miller v. Baschore.

words in the Irish language), which said words, being Suretyship: construction of guaranty.- Defendant | translated into the English language, have the meansigned a paper guaranteeing the performance of the ing and effect following, and were so understood by covenants on the part of A and B “in the foregoing the persons to whom they were so spoken and pubagreement set forth.” This, with two written lished, that is to say: ‘Let no man, woman, or obild, agreements, all unattached, one for the sale of part- keep his (meaning the plaintiff's) company, uor talk to nership interest and the other for indemnity agaiust! him (meaning the plaintiff), and if he (meaning plaindebts, were delivered to the plaintiff by A and B. On tiff) comes into any town-land, tie a kettle to his suit upon the guaranty it was held competent for the (meaning the plaintiff's) tail, as the people used to do defendant to prove that upon signing the guaranty he of old;' the defendant meaning by the said words was shown by A only the agreement for the sale of the that the plaintiff had committed an indictable offense partnership interest, and that A represented to him of so grave and disgraceful a description as to deserve that this was the agreement referred to, and that he i that the publio should avoid and reject the company and conversation of the plaintiff.” The second count at all, it should be extended to all clergymen of every complained of the speaking and publishing of the denomination who preached sermons, or indeed to words following: “Can any one of you tell me where laymen, many of whom also preach sermons. We canhe (meaning the plaintiff) gets the money to spend ? not adopt the analogy of the privilege of the members Is his mother foolish enough to give it to him, or does of the House of Commons, and of barristers, which he (meaning the plaintiff) steal cows and horses ?| has been also pressed upon us. Such a privilege is The defendant meaning by the said words that the founded upon other and different principles, and we plaintiff had frequently feloniously stolen, and was in can find no public benefit in extending this class of the habit of feloniously stealing, the cows and horses. cases to persons preaching a sermon, and naming or The third count complained of the speaking and pub plainly pointing at particular persons. The moral lishing of the words following: “I'll go to his (mean duty of the defendant has been much pressed upon ing the plaintiff's) mother to make him (meaning the | us; but it is admitted that the defendant, in denouncplaintiff) leave the country, and if not, I'll go to the ing the plaintiff by name, was violating the provisions landlord to make him (meaning the plaintiff) do so." of one of the decrees of his own church. It is, thereThe defendant meaning by the said words that the fore, a solecism in reasoning to say that there was a plaintiff had committed an indictable offense.

duty incumbent on the defendant, when in the very In answer the defendant pleaded that he was at the speaking of the words he was violating his duty. time of uttering the words the Roman Catholio par| Apart, however, from any such question, we are of ish priest of the parish where the words were spoken; | opinion that the plea of privilege cannot be extended that at the time plaintiff was a parishioner; that he to the occasion of delivering or preaching a sermon, believed that plaintiff had been guilty of improper and on this ground we must allow the demurrer. conduct; that the conduct was a matter of notoriety,

LAWSON, J. I never thought this case arguable, and and caused in the parish great annoyance; that at the

feel some surprise that in the year 1877, for the first time of speaking the words he was performing his

time, such a privilege should be claimed, which would duties as clergyman in the presence of his assembled

not be tolerated in these countries even at a period parishioners, and that he uttered the words in good

when ecclesiastics were hardly subject to the laws of faith, believing them to be true, and for the sole pur.

the land. I am of opinion that neither from pulpit nor pose of rebuking sin, and preventing a repetition of

altar can slander be uttered, and if it is, the person the acts complained of. To this plea plaintiff demur

who does so must justify its truth, or be prepared to red.

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

KEOGH, J. I never entertained a doubt about this

case from the moment it was mentioned. Anderson (with him Heron, Q. C.) contra, cited Buckley v. Keernan, 7 I. C. L. R. 75; Cooke v. Wilde,

Demurrer allowed. 5 E. & B. 341; Spill v. Maule, L. R., 4 Ex. 232; Harri

[See on this subject Fitzgerald v. Robinson, 112 Mass. son v. Bushe, 5 E. & B. 344; Whitley v. Adams, 15 c. | 371, and cases cited. — ED. A. L. J.) B. (N. S.) 392; Davies v. Snead, L. R., 5 Q. B. 608; Somerville v. Hawkins, 10 C. B. 583; Starkie on

RECENT ENGLISH DECISIONS. Slander (4th ed.), 526, 527.

BROKAGE. MORRIS, C. J. This action is brought against the defendant, a parish priest, complaining of his use of

Earning of commission: proximate cause: in conseexpressions toward the plaintiff of a slanderous char

quence of." – A employed B to sell a ship, and agreed acter, and the defense is one of privileged occasion,

that if a sale was effected to any person "led to make based on the fact of defendant being a parish priest,

such offer in consequence of” B's mention or publicaand of the duty arising from that office of rebuking

tion of it, B should be paid a commission. Held, that and admonishing sinners by name. The argument of

B was entitled to his commission, although neither the the junior counsel in support of the plea, rested the

purchaser nor his agent had seen B’s publication, as he privilege on the relative position of the plaintiff and

had been led to make an offer by hearing of it. Comdefendant, and, as flowing from it, a duty to admonish

mon Pleas Division, June 11, 1877. Bayley v. Chadthe plaintiff, which, by the demurrer, it is admitted

wick, 36 L. T. Rep. (N. S.) 740. defendant did bona fide and believing in the truth of

CONTRACT. the statement. The case of Somerville v. Hawkins, 10 Mercantile contract: construction : shipped during C. B. 583, was cited, where a master spoke of a servant | March *** April:" evidence of mercantile usage. — The in presence of other servants, in words which under appellants, by contracts dated London, March 17, 1874, other circumstances would have been actionable, but bought of the respondents "about 600 tons of Madras which were there held privileged. But Mr. Heron, for rice, to be shipped during the months of March on the defendant, claimed a privilege as arising to the April, per Rajah of Cochin.” About four tons only of defendant as a clergyman, virtute officii, of rebuking the rice were shipped in March, the remainder having sin, and, by way of illustration, naming a particular been shipped in February. The appellants refused to person. There is no authority for such a proposition, accept it, as not complying with the contract. Held and indeed Mr. Heron, when asked was the rule to be | (reversing the judgment of the court below), that the confined to Roman Catholic clergymen, and, if ex words of the contract being clear, and there being no tended to clergymen of other denominations, where evidence of any mercantile usage in such case, the aphe would draw the line, answered that he would con- pellants were justified in not accepting the rice, it not fine the rule to clergy men having the cure of souls, being a March or April shipment. Alexander v. Vanderwhom he defined as Roman Catholic priests and clergy- see, L. R., 7 C. P. 530, explained and distinguished. men of the late Established Church. Such a distinc- | House of Lords, June 8, 1877. Bowes v. Shand, 36 L. T. 'tion is merely arbitrary, and if the privilege existed | Rep. (N. S.) 857.

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