"Cross-Question 18. Do you ever have orders from cus

tomers for Banca tin,

that you execute by the delivery of

Revely or Straits? Ans. We have."

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Cross-Question 22. Suppose you had an order from a foundry say Hooper & Co. - for five thousand pounds.

of Banca tin, which you knew was to be used for castings, how would you fill such an order? Ans. We should not hesitate to give him Revely."

"Re-Cross-Question 1. Would you not deliver to a party five thousand pounds of Revely tin, upon a contract for Banca tin, if you had never known them to buy such a quantity of any kind but Revely or Straits, if you had repeatedly sold them Revely or Straits acceptably, and you considered the tin was to be used for castings? - Ans. I should."

3. The usage at the Navy Yard was in harmony with commercial usage, as the testimony abundantly shows. For at least seven years previous to the contract of the respondents, the tin known as Revely had been received at the yard as Banca. Edward Cody, witness for the prosecution, and the master founder, on cross-examination, puts this beyond question.

"Cross-Question 4. During these seven years [past], has not the Revely tin been the standard article in use in your burcau or foundry? Ans. It has."

"Cross-Question 11. If you had been inquired of by them [Smith Brothers & Co.] what kind of tin you required, what would have been your reply? Ans. I should have had the same as I have had.

Cross-Question 12. What is that?

Ans. Revely."

Another witness, the Hon. Eugene L. Norton, the Navy Agent at Boston, testifies, that, having occasion to buy tin on a requisition from the Ordnance Office, he sent to inquire of Captain Green, the Ordnance Officer,

what brand was required. The answer was, "that, in all cases where it was foundry work, Revely or Straits. would be the kind that would be received; that, in those cases where it was wanted in small quantities, for solder, Banca would be preferred, as Revely or Straits was somewhat cheaper than Banca." And he added, that the quantity named in the requisition, as a ton, or a pig, would indicate the kind he should buy. Add to the testimony of these two witnesses the undisputed fact, that, when, in May, 1863, C. W. Schofield, being under contract to deliver five thousand pounds of Banca, failed to perform his contract, the Government, although entitled to purchase the desired article in open market at his expense, bought Revely. Here was a practical interpretation of the contract, which establishes the usage of the Navy Yard.

4. The openness of the transaction and of the delivery testify also to the usage. The tin, when delivered, was stamped upon its face "Revely & Co." This stamp, which was open to the observation of all officers, workmen, and passers-by, is an incontrovertible witness, which no argument of counsel or ingenious commentary can neutralize. Calmly, but unanswerably, it shows two things: first, the usage at the Navy Yard; and, secondly, the good faith of the transaction. But I refer to it now simply to illustrate the usage.

5. Then comes the acceptance of the tin marked as Revely, and the approval of the bills by the officers of the Government, in performance of the contract. It is not denied that the tin was accepted by Mr. Merriam, the master machinist at the Navy Yard, and that the bills were approved by Mr. Kimball, the inspecting officer of Government, an inspector who is said to have

been unfriendly to the respondents. This double fact is beyond question. An attempt is made to throw doubt on the integrity of one of these witnesses, by charging complicity; but it does not appear that there is a scrap of evidence in the record to sustain the imputation, and I need not say it is outrageous to imagine it, in order to increase the pressure upon the respondents. Mr. Merriam, in his testimony, says: "I was influenced, undoubtedly, from my knowledge of the practice which had existed heretofore, and also from my belief that the article answered every purpose in the department which Banca tin was required for. The previous practice of the department, of which I had been informed, in addition to my own judgment as to the substantial equality of the articles, were reasons for my approving the bill." Nothing could be more explicit or reasonable.

The report adopted by the Secretary of the Navy seeks to parry the force of this approval by the allegation, that "there is not a particle of proof on the record that any one of the officers or other persons employed at the Navy Yard, or in the transaction of its business, had ever received from the Government any sort of authority to make such inspection, approval, and payment as appears in the case." The report forgets the usage of seven years at the Navy Yard, and the commercial usage besides, which were ample to justify them.

6. As it is evident that the Government did not expect to receive other than Revely, so it is proved that the respondents never expected to supply other than Revely, unless in cases of small quantities, where, as we have seen, the Banca was supposed to be desired. Such is the testimony of Benjamin G. Smith, one of the respondents, and also of Mr. Dunnells, their clerk.

The latter states, that his instructions from the respondents were to deliver Banca when small lots were required, but Revely when large lots of one thousand pounds and upwards were required, and that, as far as his knowledge went, this had always been done. Therefore the contract was performed according to the mutual understanding of the two parties.

7. The price, according to the contract, shows that the tin called Revely was intended. This can be demonstrated.

At the date of the contract, 30th March, 1863, the price of Banca in the market was fifty-seven to fiftyeight cents a pound. Revely was less. The price stipulated in the contract was fifty-seven cents. But it is plain that the respondents could not undertake to supply an article at less than its market price. This would be absurd. Of course, as merchants, they expected a profit. Therefore, in their bid, they would naturally take into consideration the various elements which would enter into the final price. These would be, first, the original price; secondly, the commission; thirdly, the condition of the currency, which at that time had begun to depreciate; fourthly, the variation of the market for a month; fifthly, store expenses and interest; sixthly, postponement of payment; and, seventhly, risks of a contractor in placing himself within the unhesitating grasp of military power. So far as these can be estimated, they are as follows:

But the price was fifty-seven cents.

Now can any person, not to say any merchant, assert that fifty-seven cents a pound was a high price for the tin called Revely? Would anybody but a fool offer to supply the tin which in this prosecution is called Banca at fifty-seven cents a pound, when its original price was more than this, and the contractor must lose store expenses and interest, with the risks of currency, market, postponement of payment, and military tribunals, without the possibility of a mill for commissions? Clearly not. It is evident, therefore, that, in offering to supply Banca tin at fifty-seven cents a pound, they must have intended that species of Banca tin known as Revely, which, according to the usage of the Navy Yard and of merchants, had been recognized as Banca tin.

On this point we have the testimony of Mr. Richards, a witness for the Government, whose cross-examination thus confirms the foregoing conclusion.

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Cross-Question 37. What would it be worth to give a party the refusal for, say, five thousand pounds of tin for twenty or thirty days? Ans. At least fifteen per cent." 'Cross-Question 44. During the year 1863, how much, in addition to the cash market price, would you have considered should be added for a refusal of thirty days?Ans. From ten to fifteen per cent.

Cross-Question 45. Tin being sold to us at fifty and three-fourths cents net cash in the market, would fiftyseven cents be an improper sum for us to charge the Government on a time refusal? Ans. I should think not.

"Cross-Question 46. If you were to be subject to a delay of vouchers for merchandise delivered for thirty days, if there should be a reservation of twenty per cent until the contract was closed, and if then you were liable to be