January, and in May gave notice that it would receive what was made up to and including December 1st, on condition of being discharged from further obligation under the contract, I have no doubt that a legal breach of this contract occurred, and the plaintiffs would have the right to treat the contract as repudiated by the defendant at that time; and plaintiffs were under no obligation to make the tender which they subsequently made of the iron. The plaintiffs, however, by their contract with the Leland Iron Company, were bound to receive this iron at Cleveland or Chicago, at the price fixed in their contract, and, I suppose, the plaintiffs were subjected to no special inconvenience or cost in making a tender of these cargoes, as the Leland Iron Company shipped them during the months of May, June, and July, 1881. The only legal effect of this tender, after the defendant's repudiation of the contract, it seems to me, was to keep the contract alive, so far as to enable the defendant to recede from its repudiation and accept the iron when tendered, and, perhaps, to give the defendant the benefit of any advance in the price; that is to say, if the defendant, after having given notice that it would not accept this iron, had, when these cargoes were tendered it from time to time, seen fit to accept it, it would have been a good performance on both sides, and have fully condoned the breach which was committed by the defendant at an earlier day, by their notice that they would not accept the iron.

Defendant also insists that the ore was not delivered by the plaintiffs to the furnace company in the proportions called for by the contract; defendant assuming that the ores were to be mixed for the purposes of making this pig-iron in the proportions of the quantities from the several mines, while the proof shows that there were 20 tons less "Cleveland ore" delivered than called for by the contract; 595 tons less "Norway," 22 tons less "Rolling mill," and 805 tons more "Stevenson" than was called for by the contract. But the proof shows that the quality of the Norway and Stevenson ores was the same; that the two mines were on the same vein, and close together, so that their workings ran into each other; as one witness says, the ores of the two mines were identical in quality and value, and these two ores cost plaintiffs the same price per ton, delivered on board vessel at Escanaba. It is true that the witness Emmerton, the chemist of the Joliet Iron & Steel Company, testified that he analyzed a single sample of Stevenson ore, which showed 97-1000 phosphorus, and 10 per cent. of silica; that he also analyzed two samples of Norway ore for phosphorus, one of which showed 21-1000 phosphorus, and 22 per cent. silica, and the other showed 53-1000 phosphorus. The large amount of phosphorus shown in this single sample of Stevenson ore is, in my opinion, no criterion of the average amount of phosphorus in the bulk of the ore from that mine. The large difference in the quantity of phosphorus in the two samples of Norway ore examined by this witness is a sufficient illustration of the fallacy of re

lying upon the analysis of a single specimen as a test of the average result of the whole product of a mine. The testimony of this witness, therefore, does not, in my estimation, establish an appreciable difference between the ores of the two mines; at least, it does not overcome the affirmative testimony that the ores are essentially alike. By the contract with the Leland Company, these ores were to be mixed as directed by plaintiffs. No evidence of any direction by plaintiffs or defendant as to the mixing of the ores is put into the case. The defendant accepted the entire quantity of ore shipped during the season of 1880, without any complaint as to the quality of the iron, and even offered to take all that had been made up to the first of January, 1881, and no objection was raised as to the quality of their iron. I therefore conclude that these slight shortages in the quantities of Cleveland and Rolling-mill ore are in no sense material, and, indeed, the quantities are as close as can usually be practically arrived at in the transportation by vessel cargoes of so large volumes of any commodity, and that the excess of Stevenson ore over the Norway has in no perceptible way affected, the character of the product of these masses of ores, and that these facts furnish no excuse for the breach of the contract by defendant. Undoubtedly, if plaintiffs, after the notice from defendant that it would not accept any more iron on the contract, saw fit to proceed and complete the contract and tender the iron, they were bound to a substantial compliance with the terms of their contract. But I see nothing in the proof showing that they did not substantially perform their contract.

Finding, as I do, from the proof in the case, that defendant has been guilty of a breach in its contract, the only question remaining is the measure of the plaintiffs' damages. This being a contract of sale, the obvious and natural rule of damages is the difference between the price which the defendant, by its contract, agreed to pay for this iron, and the market value of the iron at the time defendant refused to perform its contract. I do not think that plaintiffs can increase or enhance the damages by the tender of performance, after the notice by defendant, on or near the first of March, that it would not accept any more iron on the contract. This was a breach by defendant which fixed the measure of its liability. The defendant knew at the time this notice was given that plaintiffs had bought this iron from the Leland Iron Company, were bound to accept and pay for it on the terms of their contract with that company, and knew, therefore, that plaintiffs would have the iron on their hands, and be compelled to dispose of it on the best terms they could if the defendant did not accept it.

The rights of complainant, therefore, seem to me the same, as to the measure of compensation, as if plaintiffs had had the iron on hand and ready to deliver, and had tendered a delivery on the first v.17,no.5-28

or third of March. If, however, this iron had advanced in price between the first of March and the time the plaintiff tendered it to the defendant, so as to make less difference between the contract price and the market price, the difference between the market price and the contract price at the time of the tender would be the measure of damages. But I find from the proof there was very little difference. in the price of Lake Superior iron between March and the first week in July, either in the Cleveland or Chicago markets. This iron was not a well-known brand, having a quotable market value; it was made on contract from certain ores, and had no established reputation. It may have been said to have been made for the defendant, and the defendant only, to be used in and about the defendant's business. The proof shows that plaintiffs did not put this iron on the market and attempt to sell it until about November, 1881, and that since that time they have been diligently endeavoring to sell it, but had up to the time of the trial only succeeded in disposing of about 1,000 tons, in comparatively small lots, at prices averaging about $30 per ton; but from this must be deducted expenses, such as storage, commissions for selling, etc. I do not consider these sales made by plaintiffs as any standard or criterion of the value of this iron in the spring or summer of 1881. I conclude, however, that the preponderance of proof justifies me in finding that this iron could not have been sold in any of the markets for pig-iron between the first of March and the first of August, 1881, for more than a net price of $27 per ton, which, deducted from the contract price of $45 per ton, gives the difference of $18 a ton, making a total of $82,422 as the difference between the market price of the iron and the contract price on the 4,579 tons; that is to say, I assume that the product of the 14,000 tons of ore would be, in round numbers, 8,000 tons of pig iron. Three thousand four hundred and twenty-one tons, in round numbers, were delivered in the fall of 1880, and it left 4,579 tons due on the contract after the opening of navigation in the spring of 1881. It will be remembered that there was delivered by the plaintiffs to the Leland rolling-mill the gross quantity of 14,168 tons, and the total amount of iron manufactured was 8,074; the 74 tons being manufactured, as I assume by the proof, from the excess of ore delivered by the plaintiff to the rolling-mill company, which, of course, the defendant is not chargeable with.

UNITED STATES V. STARN.

(District Court, D. New Jersey. July 24, 1883.)

1. EXCESSIVE FEE IN PENSION CASE-INDICTMENT.

Section 31 of the act of March 3, 1873, declared-First, that no agent, attorney, or other person should receive as a fee in any pension case any greater compensation than might be allowed by the commissioner of pensions, not exceeding $25; and, secondly, prescribed the punishment for so doing. The first part of the act was made section 4785 of the Revised Statutes, and the second part, section 5485. By act of June 20, 1878, congress expressly repealed Rev. St. § 4785, and limited the fee in all cases to $10; but left Rev. St. § 5485, prescribing the penalty, still in force. On March 3, 1881, congress enacted that the provisions of Rev. St. 5485, should be applicable to any person who should violate the provisions of the act of June 20, 1878. Held, that there was no statute in force during the period between June 20, 1878, when Rev. St. § 4785, was repealed, and March 3, 1881, on which the penalty prescribed by Rev St. § 5485, could operate, and an indictment charging an offense in receiving a greater fee than allowed by the title of the Revised Statutes relating to pensions, during such period, could not be sustained.

2. PENAL STATUTES-CONSTRUCTION.

It is a fundamental rule in the administration of criminal law that penal statutes are to be construed strictly, and that cases within the like mischief are not to be drawn within a clause imposing a forfeiture or a penalty, unless the words clearly comprehend the case.

3. SAME-PUBLIC MISCHIEF TO BE SUPPRESSED.

In construing a statute the court should look at the public mischiefs which are sought to be suppressed, as well as the obvious object and intent of the legislature in enacting it; and in doubtful cases these have great influence on the judgment in arriving at its meaning; but where the law-making power distinctly states its design, no place is left for construction.

Motion to Quash Indictment.

A. Q. Keasbey, U. S. Dist. Atty., for the United States.
S. H. Grey and Thos. B. Harned, for defendant.

NIXON, J. The defendant is indicted under section 5485 of the Revised Statutes. The first count of the indictment charges that, being the agent of one Benjamin Barnes in procuring his pension, he demanded and received from the said Benjamin a compensation for his services, in prosecuting said claim, greater than was provided in the title of the Revised Statutes of the United States pertaining to pensions. The motion is to quash the said count, on the ground that when the alleged offense was committed, to-wit, on May 1, 1880, there was no provision in the title of the Revised Statutes pertaining to pensions, limiting the fee which an agent or attorney might lawfully demand and receive for his services in a pension case.

On the third of March, 1873, the congress of the United States passed an act to revise, consolidate, and amend the laws relating to pensions. 17 St. at Large, 566. By the thirty-first section it was enacted in substance: (1) That no agent or attorney, or other person, instrumental in prosecuting any claim for pension, shall demand or receive any other compensation for his services, in prosecuting a claim for pension, than such as the commissioner of pensions shall

direct to be paid to him, not exceeding $25; (2) that any such person who shall directly or indirectly contract for, demand, or receive any greater compensation for his services than is herein before provided, or who shall wrongfully withhold from a pensioner the whole or any part of the pension allowed and due such pensioner, shall be deemed guilty of a high misdemeanor, and, upon conviction thereof, shall, for every such offense, be fined not exceeding $500, or imprisoned at hard labor not exceeding two years, or both, at the discretion of the court; (3) and if any guardian, having the charge and custody of the pension of his ward, shall embezzle the same, or fraudulently convert it to his own use, he shall be punished by fine not exceeding $2,000, or imprisonment at hard labor for a term not exceeding five years, or both, at the discretion of the court. When the commissioners appointed to revise and consolidate the statute laws of the United States (see 14 St. 74) came to this section they thought proper to subdivide it into three sections, and to place them in different parts of the Revision. The first part thereof appears under the title pertaining to pensions, and is section 4785 of the Revised Statutes. The second division was set in the sixth chapter of the title relating to crimes, and is section 5485; and the third is printed under both these titles, being numbered in the one, section 4783, and in the other, section 5486.

The commissioners were authorized, in the second section of the law appointing them, in the performance of their duties, to make such alterations as they deemed necessary to amend the imperfections of the original text. They hence inserted in section 5485, in lieu of the words of the former law, "than is herein before provided, the phrase, "than is provided in the title pertaining to pensions;" referring, doubtless, to section 4785.

The law thus stood until June 20, 1878, when a new act was passed, entitled "An act relating to claim agents and attorneys in pension cases," (20 St. 243,) by the provisions of which it was made unlawful for any one to demand or receive for his services in a pension case a greater sum than $10; the second section expressly repealing section 4785 of the Revised Statutes. This enactment and repeal, upon its face, seems to have rendered it unlawful, under the provisions of the Statutes at Large, to demand or receive more than $10 for services in procuring a pension; to have removed all limits to charges in such cases from the sections of the title pertaining to pensions; and to have left standing a penalty for the violation of a section which was no longer in force. On March 3, 1881, (1 Supp. Rev. St. 602,) the congress enacted that "the provisions of section 5485 of the Revised Statutes shall be applicable to any person who shall violate the provisions of an act entitled 'An act relating to claim agents and attorneys in pension cases,' approved June 20, 1878." The offense charged in the indictment is conceded to have been committed, if at all, on the first of May, 1880,-a period of time