latter; whether there was any balance due to the Liverpool house upon former transactions; whether McGran was insolvent or not according to the advices received by the Liverpool house; and whether, under the circumstances disclosed in the evidence, the Liverpool house had a right to sell the two hundred bales of cotton for their reimbursement, notwithstanding the wishes or orders contained in the letter of the 20th of April. The jury at the trial found a verdict for the plaintiff, (McGran,) for $4,978 57 cents, under certain instructions given by the Court, upon which verdict judgment was accordingly rendered; and a bill of exceptions having been taken by the original defendants, the cause now comes before us for revision upon the points made, and instructions given at the trial.

The counsel for the defendants asked the court to instruct the jury, (1.) That the advance by the house of Brown in New York was in effect an advance by the house in Liverpool, and after the advance so made the shipper had no right to alter the instructions which were given at the time of such advance. (2.) That the house in Liverpool having advanced so large an amount on this cotton, having a previous unsettled claim against the shipper, and the shipper having afterwards, and before the sale of the cotton, became insolvent, the house in Liverpool had a right to sell for their reimbursement, notwithstanding the subsequent orders of the shipper. The Court refused to give these instructions, and in our judgment with great propriety, as each of them involved matters of fact in controversy before the jury, upon which it was exclusively their province to decide.

If the defendants meant to draw from the Court an opinion in point of law upon the assumed facts, the proper mode would have been to have asked the Court to instruct the jury, that if they found the facts to be as thus assumed, then that the law was as these instructions stated. The Court then proceeded to instruct the jury, that if they found from the evidence in the cause, that the plaintiff had given instructions to the defendants by his letter of the 20th April, 1833, not to sell any cottons which the defendants might have on hand, when that letter reached them, in which the plaintiff was interested, until the defendants heard from him again, and that such instructions were received and recognised by the defendants, by the evidence in the cause, and particularly by a letter given in evidence as one from the defendants to the plaintiff, dated the 24th of May, 1833, in reply to the plaintiff's letter to them of the 20th of April, 1833, that then the defendants were not justifiable in law in the sale of the 3d of June, 1833, on account of the defendants having on that day accepted Brown, Brothers, & Co.'s draft for 1,8717. 9s. dated the 7th of May, 1833, at 60 days sight. It is observable that this instruction is given in absolute terms without reference to any other facts in the cause which might be found by the jury upon the evidence before them, and therefore must be deemed to apply to every posture of the facts which the evidence might warrant. It must, therefore, be deemed to apply to the case, although the advance was originally made by the New York house, for and on account of the Liverpool house, as agents or partners thereof, or the Liverpool house had entered into engagements prior to the advance, to become responsible for the reimbursement thereof to the New York house in the manner stated in the evidence, and although the plaintiff was, before the writing of these letters, actually insolvent and had failed in business, and that fact was known to the defendants.

One objection taken to this instruction is, that it leaves to the jury the construction of the language of the letters of the 20th of April and the

24th of May. It is certainly true as a general rule, that the interpretation of written instruments properly belongs to the Court, and not to the jury. But there certainly are cases, in which, from the different sense of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury, for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects and intentions and agreements of the parties are often to be arrived at only by allusion to circumstances which are but imperfectly developed. The present case sufficiently illustrates the distinction: McGran, in the letter of the 20th of April, says, that he wishes the defendants to hold any cottons on hand until they hear from him again. Now this language certainly ordinarily imports only a desire and not an order, and yet there can be no reasonable doubt that under particular circumstances a wish expressed by a consignor to a factor may amount to a positive command; so, in the reply of the 24th of May, the defendants say, your wishes in respect to the cotton we now hold on your account are noted accordingly; here again, the point is open, whether the language imports that the defendants construed the wishes of the plaintiff to be simply a strong expression of desire or opinion or a positive order, and also, whether the words "noted accordingly" import that the defendants took notice thereof, or took notice of and assented to obey the wishes or order of the plaintiff. The language is susceptible of either interpretation according to circumstances. If the case had been one of a simple consignment, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes might fairly be presumed to be orders, and the noting the wishes accordingly an assent to follow them. But very different considerations might apply, where the consignment should be (as the present is) one clothed with a special interest and a special property founded upon advances and liabilities; we think, therefore, that this objection is not, under the circumstances of the case, maintainable. It would be quite another question, whether the court might not, in its discretion, have assumed upon itself the right and duty of construing these letters. There is no novelty in this doctrine; it will be found recognised in Ekins v. Macklish, (Ambler's Rep. 184, 185,) Lucas v. Groning, (7 Taunt. Rep. 164,) and Rees v. Warwick, (2 Barn. & Ald. 113. 115.) But the main objection to the instruction is of a more broad and comprehensive character. The instruction in effect decides, that in the case of a general consignment of goods to a factor for sale, in the exercise of his own discretion as to the time and manner of sale, the consignor has a right by subsequent orders to suspend or postpone the sale at his pleasure, notwithstanding the factor has, in consideration of such general consignment, already made advances, or incurred liabilities for the consignor at his request, trusting to the fund for his due reimbursement. We are of opinion that this doctrine is not maintainable in point of law. We understand the true doctrine in this subject to be this: wherever a consignment is made to a factor for sale, the consignor has a right generally to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account thereof, and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. If, however, the factor makes advances or incurs liabilities on account of the consignment, by

which he acquires a special property therein, the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances, or meet such liabilities, unless there is some existing agreement between himself and the consignor which controls or varies this right. Thus, for example, if, contemporaneous with the consignment and advances or liabilities, there are orders given by the consignor which are assented to by the factor, that the goods shall not be sold until a fixed time; in such a case the consignment is presumed to be received by the factor subject to such orders, and he is not at liberty to sell the goods to reimburse his advances or liabilities until after that time has elapsed. The same rule will apply to orders not to sell below a fixed price, unless, indeed, the consignor shall, after due notice and request, refuse to provide any other means to reimburse the factor; and in no case will the factor be at liberty to sell the consignment contrary to the orders of the consignor, although he has made advances or incurred liabilities thereon, if the consignor stands ready and offers to reimburse and discharge such advances and liabilities.

On the other hand, where the consignment is made generally without any specific orders as to the time or mode of sale, and the factor makes advances or incurs liabilities, on the footing of such consignment, then the legal presumption is, that the factor is intended to be clothed with the ordinary rights of factors-to sell, in the exercise of a sound discretion, at such time and in such mode as the usage of trade and his general duty require; and to reimburse himself for his advances and liabilities out of the proceeds of the sale; and the consignor has no right, by any subsequent orders, given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment not necessary for the reimbursement of such advances or liabilities. Of course this right of the factor to sell to reimburse himself for his advances and liabilities, applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity. Such, then, being the relative rights and duties of the parties, we are of opinion, that the instructions given to the jury, by the learned judge in the circuit court, is not maintainable in point of law. The consignment was general to the Liverpool house for sale- the advances and liabilities were contemporaneous with the consignment; there were no contemporaneous orders limiting or qualifying the general rights of the factors, resulting from these circumstances; the consignor subsequently either failed in business or was believed to have failed; the wishes subsequently expressed by the letter of the 20th of April, even admitting them to have the force of orders, were unaccompanied with any other means of indemnity, or even with any offer of reimbursement of the advances or liabilities. Unless, then, upon the established principles of law, the consignor had a clear right to control the sale of the consignment by any orders which he might in his discretion choose to give, notwithstanding such advances and liabilities, which we are of opinion he had not, the instruction was erroneous.

We have not thought it necessary to enter upon any general examination of the authorities which support the doctrines which have been stated by us. But the opinion of Lord Chief Justice Gibbs, in Pothorier v. Dawson, (1 Holt's Rep. 383,) and the opinions of the judges in Graham v. Dyeter, (6 Maule and Selw. 1. 4. 5,) will be found fully to

recognise some of the leading principles. Another instruction was given by the Court to the jury, upon the question of damages, supposing the Liverpool house by the sale had violated their proper duty. It was, that if the jury found, from the evidence in the cause, that cottons were selling for a higher price from the 3d of June, 1833, when the draft was accepted, and when the cotton was sold, until the time when the said draft was mature and payable, and if the evidence in the cause ascertains, at any time before the maturity of the draft, what such higher price was, and that the cotton belonging to the plaintiff could have been sold at such higher price, then the plaintiff was entitled to recover from the defendants the difference in price between the sum for which the defendants sold the cotton, and the sum at which it might have been sold before or at the maturity of the draft. This instruction was doubtless framed upon the ground that this was the claim of damages which the plaintiff asserted by his letter of the 30th of July, 1833. But as that letter was not assented to, or the claim recognised by the defendants, this claim could in no just sense be obligatory upon them, and as a general rule of law applicable to damages under like circumstances, we think that it cannot be maintained. Supposing the sale made by the defendants on the 3d of June to have been tortious, and in violation of orders, the plaintiff had his election either to claim damages for the value of the cotton on that day, as a case of tortious conversion, or for the value of the cotton on the 23d of August following, when the letter of the plaintiff, of the 22d of July, was received, which authorized a sale. If the price of cotton was higher on that day than at any intermediate period, he was entitled to the benefit thereof. If, on the other hand, the price was then lower, he could not justly be said to be damnified to any extent beyond what he would lose by the difference of the price of cotton on the 3d of June, and the price on the 23d of August.

For these reasons, we are of opinion, that both the instructions given by the Circuit Court to the Jury were erroneous, and therefore the judgment ought to be reversed, and the cause remanded, with instructions to that court to award a venire facias de novo.

IMPORT DUTIES.-KNIT SHIRTS AND DRAWERS.

2. Circuit Court of the United States, before Judge Betts, January 20th, 1840. James Hall v. Jesse Hoyt.

This action was brought to recover back the excess of duties demanded by the defendant, collector of New York, upon knit shirts and drawers. The defendant had demanded duty on them as ready-made clothing; the plaintiff insisted that they were subject to duty as hosiery, and that he was entitled to recover back the excess.

Samples of the article were exhibited; the shirts had a piece of cotton cloth sewed upon the opening in front, with two or three buttons sewed on upon one side and button holes worked on the other. The drawers had waistbands sewed on, with buttons and button holes, and tapes at the bottom. They were fit for wearing without farther work, and had been prepared before importation.

The plaintiff proved that the articles were made by hosiery manufacturers, upon the stocking frame. That they were dealt in by dealers in hosiery in England, and were there known as hosiery; that the cotton cloth was sewed on, button holes made, &c., by persons connected with the manufacturer, and as part of his business; also, the plaintiff proved

that in the United States in the year 1832, and prior to it, they were imported from England and were known as hosiery goods; that they were kept by hosiery dealers for sale; that they would be furnished upon an order for hosiery, but not on an order for ready-made clothing; that they did not go in commerce under that name; that in invoices they were called shirts and drawers, woolen or cotton shirts and drawers, knit shirts and drawers, and hosiery shirts and drawers. They were not usually kept in ready-made clothing stores, but sometimes were. Ready-made clothing meant clothing cut from cloth to fit, and made by tailors' sewing.

On the part of the defendant, evidence was given, that the articles were kept by some dealers in ready-made clothing; that they were by some called ready-made clothing; that at the custom house, in 1832, and for some years before, duty had been demanded on these goods as on ready-made clothing, which duties, prior to the act of 1832, was acquiesced in.

The Court charged the jury, that the act of congress, in its use of the terms hosiery and ready-made clothing, must be construed in reference to the common use and meaning of the terms, unless they appeared to have acquired a separate and different meaning in commerce. If they had, that meaning was to prevail; and they must look to the meaning of the terms at the date of the act, and not at the present time, or as changed after the act was passed. That the practice of the custom house was only to be looked at as part of the evidence of the acceptance of the words by merchants dealing there; and, if the terms did not in commerce bear the sense there put upon them, the practice of the custom house could not govern the construction.

That in the present case the articles were clothing, and were ready made; they were therefore liable to duty as such, unless the jury should find that they were known in commerce under some other name, and charged with duty under such other name.

That if they were known under the name of hosiery, then, as that description of goods had been in the same section of the law charged with a lighter duty, it would not be subject to the heavier duty of ready-made clothing.

That hosiery was a word of more general signification than stockings, which was the word of the act of 1816, which was dropped in the act of 1828, and the word hosiery introduced. It signified a class or description of goods; and if the jury found that these goods were among importers and vendors and purchasers generally known in 1832, (the date of the act,) as hosiery, they would be liable only to the duty on hosiery, and the plaintiff was entitled to recover; otherwise, they were liable as ready-made clothing, and the defendant must have a verdict.

Verdict for plaintiff for $3,473.

M. Bidwell and D. Lord, jr., for plaintiff.

B. F. Butler, district attorney, for defendant.

3. Circuit Court of the United States, before Judge Betts, January 24, 1840. D. Hadden v. Hoyt.

This was an action to recover the excess of duties on knit shirts and drawers; and the evidence was similar to that of the case of Hall v. Hoyt. But in the present case, the defendant introduced the former col