L^2 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell Univiersity 
 
 And Presented February 14, 1893 
 
 IN riEnoRY OF 
 
 JUDQE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and BLLEN D. WILLIAMS 
 
Cornell University Library 
 KF 427.L42 
 
 The law of usages and customs, with illus 
 
 3 1924 018 794 259 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018794259 
 
THE LAW 
 
 OF 
 
 USAGES AND CUSTOMS, 
 
 WITH 
 
 ILLUSTRATIYE CASES. 
 
 JOHK^ D. LAWSOJS", 
 
 ▲VTHOK or " A Tbeatisb on the Oontraois of Coumon Oabkibks," Etc., Etc. 
 
 ST. LOUIS: 
 F. H. THOMAS & COMPANY. 
 
 1881. 
 
^^£m] 
 
 Entered according to the Act of Congress, in tlie year 1881, by 
 
 JOHN D. LAWSON, 
 
 In tlie office of the Librarian of Congress, at Waslungton. 
 
 i»rM» of Q. I. Jones <f Co., St. Louta, Mo. 
 
TO THE 
 
 HOl^OEABLE GEOEGE W. MoCEAEY, I.L«D. 
 
 AUTHOE, LEGISLATOB, JURIST, 
 
 NOW 
 
 JUDGE OF THE UNITED STATES CIRCUIT COURT 
 
 FOB THE 
 
 EIGHTH JUDICIAL CIRCUIT, 
 THE FOLLOWING PAGES ARE EESPECTEULLY 
 
 DEDICATED. 
 
PREFACE. 
 
 I cannot refrain from expressing some considerable satisfaction that 
 I am not called upon in this place to repeat the stereotyped apology 
 which, of late years, almost without exception, has accompanied the 
 appearance of a new work on a much-written branch of the law. I am 
 not obUged to call the attention of the profession to the fact that all pre- 
 vious treatises on this subject have lacked certain qualifications which 
 this one supplies. With the exception of a short tract published in 
 England a few years ago,' the present I believe to be the first attempt 
 to gather together the numerous cases in which evidence of usage and 
 custom has been received in courts of justice, and to consider in a 
 separate treatise the principles upon which the usages and customs of in- 
 dividuals and trades and occupations are admitted into the law, and are 
 allowed to govern in considering the rights and liabilities of parties to an 
 action. As Mr. Bbowste has pointed out,® as a country becomes more 
 civilized its laws of evidence become less strict, because whenever a coun- 
 try is progressive all its laws tend to improve. In the earlier history of 
 our jurisprudence in England, the courts were averse to going outside 
 of the actual contract for the purpose of interpreting it. But our pro- 
 gressive age has given rise, in commercial transactions, to many admi- 
 rable customs which have pushed their way into the law, and the courts 
 have at last recognized the fact that the practices of the public are not 
 only easy of proof, but are the best evidence of the intention of a 
 party, in the ease of a dispute, there being the strongest possible pre- 
 sumption that he who ^vrites a document, or makes an agreement, does 
 as others do, and shapes his conduct according to the manners and 
 usages of his time and place. Hence the importance of this species of 
 evidence at the present day, the tendency of the courts being now 
 towards showing the utmost liberality in admitting evidence of usage 
 and custom, as is sufficiently evident in the frequency with which cases 
 involving the discussion of the admissibility of parol evidence of cus- 
 tom and usage to affect the rights of parties as measured by the general 
 
 1 The Law of Usages and Cuetonis. A Practical Law Tract. By J. H. Balfour Browne. 
 London. 1875. 
 
 (iii) 
 
PKEFACE. 
 
 rules of law, or to vary, add incidents to, or explain the meaning of 
 written contracts, have come before the English and American courts 
 ivithin recent 3'ears. 
 
 As regards the plan of the work, I have experienced a difflcultj'- 
 which is not always encountered by legal writers, in the fact that I have 
 been entirely without a guide in dividing mj'^ subject into chapters, and 
 practicallj' without one in its less general divisions. Nevertheless, the 
 cases which I have consulted seem to resolve themselves into five broad 
 and distinct classes, each of which makes a separate chapter in my 
 book. First are those cases in which, for one reason or another, usages 
 and customs have been declared invalid by the courts ; and these require 
 an independent examination, and a discussion of the requisites to the 
 validitj- of a usage or custom (Chap. I.). After these come a consid- 
 erable number of adjudications where the modes of establishing their 
 existence were examined and laid down by the judges ; and these 
 naturally suggest an inquiry into the proof necessary to establish a 
 usage or custom (Chap. II.). Following these is the majority of 
 the decisions — the cases in which the usages of the different relations 
 and occupations were offered in evidence to affect the rights and liabili- 
 ties of persons in their dealings with one another (Chap. m. ). A 
 fourth class embraces those cases in which oral or written contracts 
 are to be explained by the incidents of the business out of which the 
 contract came ; and the extent of this subject demands that it shall be 
 presented in a separate chapter (Chap. IV.). Finally, and hardly less 
 important, are the cases in which the usage, when offered in e\idence, 
 was found to conflict with an express agreement between the parties 
 whose actions it was introduced to affect, or with a legislative act, or 
 with a rule of public policy ; and these are embraced in my concludino- 
 chapter (Chap. V.). So far, I believe my arrangement to be not only 
 practical, but logical, even if I cannot claim the hitter for the further 
 divisions of my work. Here it will be found that I have classed the 
 different adjudications on the basis of the different trades and call- 
 ings in which the usages were formed, or the different instruments in 
 the interpretation of which they were admitted. As I have pointed 
 out further on,i this arrangement appears to merit the criticism which it 
 has received. It would seem that the mere fact that the usages were 
 in themselves different would be nearlj^ as intelligible a ground for 
 classification as the one adopted. Nevertheless this is the arrangement 
 of the digesters, and it must be admitted that no really scientific classi- 
 fication is possible. I would again ask the reader to bear in mind that 
 the legal principles which are to determine the admissibility or inadmis- 
 
 ' See pos<, Chap. IV., §] 
 
PEErACE. 
 
 sibility of usages and customs by courts of law are the same in all 
 relations ; that there can be no difference because in one case the usage 
 is admitted to affect the rights of an insurer or a common carrier, and 
 in another those of a merchant's employee or a foreign factor; thai 
 the correct result cannot be reached by examining whether the parties 
 were manufacturers or tradesmen or farmers, where the question is sim- 
 ply whether evidence of usage is to be allowed to explain the meaning 
 of a technical or common word in a contract or in a receipt. If this 
 is not lost sight of, my classification will be found to be the best, as 
 it renders the access to particular precedents more easy and ready in 
 future cases. 
 
 Another word as to the form of the book. I have called the work a 
 TREATISE, although I have presented it in the form of illustrative or 
 leading cases, with notes. But in doing this I have not misnamed it 
 in order to obtain for my work a more dignified title. The notes are 
 my treatise. If any one should object that he is called upon to pay for 
 one hundred and fifty pages of eases taken bodily from the reports, 
 which are at his hand in his own library, or which he can consult else- 
 where, I shall simply reply that he obtains them without any extra 
 charge. In order to admit them into my book, the notes are printed in 
 a type three sizes smaller than that in which legal treatises are ordina- 
 rily printed. Thus, while neither its size nor its cost to the profession 
 has been increased at all, I am satisfied that its usefulness to the many 
 members of the bar who are unable to obtain access to a complete 
 library of reports wiU be greater in its present than it would have been 
 in the more usual form of a legal text-book. And even those who can 
 obtain in their original volumes aU the cases I have here reprinted, 
 wiU hardly refuse to recognize the desirability of having within the 
 covers of a single volume all the leading cases upon this branch of the 
 law. I have endeavored to accomplish this ; and by quoting freely from 
 the opinions of the judges, by making the statements of the facts of 
 most of the cases cited minute as well as correct, and by embracing 
 all the adjudications on the subject, I have aimed to make my book 
 take the place, for the judge and practitioner, not alone of a treatise, 
 but of the original reports of the several thousand adjudications on 
 the law of usages and customs which it contains. 
 
 JOHN D. LAWSON. 
 
 St. Louis, Mo., September, 1881. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 ON THE EEQUISITES TO THEIK VALIDITY. 
 
 ILLUSTKATITE CASKS. 
 HO. PAGE 
 
 1. Sewell V. Oorp. — A usage must be established 2 
 
 2. Woodv. Wood. — A usage must be certain and uniform 3 
 
 3. Womeraleyv. Dally. — A custom must be general 5 
 
 4. Stevens V. Reeves. — A usage must be known 6 
 
 5. Seagary. Sligerland. — A custom must be moral 9 
 
 6. Paxton\. Courtnay. — A usage must be reasonable 11 
 
 7. Metcalf v. Weld. — Same principle 1"^ 
 
 NOTES. ■ 
 SECTION 
 
 1. Deflnitiotis — The common-law customs 15 
 
 2. The customs of merchants 18 
 
 3. Local customs of trade 20 
 
 4. Contradictory decisions — Dislike of the judges to extend the office of a usage . 20 
 
 5. Different views entertained by other judge? 23 
 
 6. The different kinds of usages and customs 26 
 
 7. A common-law custom must be ancient 26 
 
 8. But a particular custom or usage of trade is valid if ' ' established " .... 28 
 
 9. A common-law custom must be certain 30 
 
 10. Likewise a usage of trade must be certai n and uniform 32 
 
 11. A custom must be compulsory 36 
 
 12. A custom must be consistent 36 
 
 13. A custom must be continued 36 
 
 14. Acts of accommodation or indulgence do not make a usage 37 
 
 15. But cannot be changed to the prejudice of others in some cases 38 
 
 16. A common-law custom must be general 39 
 
 17. How far generality is required of a particular custom 40 
 
 18. A usage must be known 44 
 
 19. Usages not known to parties not binding 45 
 
 20. Usages of the Stock Exchange 47 
 
 21. Customs of servants of corporations 50 
 
 22. Customs of merchants to charge interest 52 
 
 23. Customs of banks 63 
 
 24. Customs of particular trades and professions 53 
 
 25. Particular customs not kgown to insured inadmissible 5S 
 
Vlll TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 26. And ao of particular oustoms not known to insurer 56 
 
 27. Knowledge of custom — When not presumed 56 
 
 28. Person ignorant of a usage cannot take advantage of it 58 
 
 29. Proof of knowledge by a single instance 58 
 
 30. A custom must be moral 58 
 
 31. A custom must be peaceable, and acquiesced in 62 
 
 32. A custom must be reasonable 63 
 
 33. Customs beneficial to the public good, though injurious to-some 64 
 
 f>i. Customs not unreasonable if simply inconvenient 65 
 
 35. Customs injurious to the public bad, though beneficial to some 67 
 
 3tj. The existence of unreasonable modern usages doubted 67 
 
 37. Usages jorima/ade reasonable — The test of their rcusonableness 68 
 
 38. Unreasonable usages — Between vendor and purchaser 69 
 
 ;;9. Same — Banks and banking 70 
 
 40. Same — Carrier and customer 71 
 
 41. Same — Insurance . . .■ 73 
 
 42. Same — ■ Master and servant; employer and employee 73 
 
 43. Same — Public officers 74 
 
 44. Same — Principal and agent 75 
 
 45. Same — Miscellaneous 77 
 
 46. The custom of a particular person or the habit of an individual 78 
 
 47. Cases where this proof was rojocted 81 
 
 48. Custom does not make a pHiliciiliir mode of executing a contract essential . . 82 
 
 49. Entries made in the usual C'lui-su of business 82 
 
 CHAPTEE TI. 
 
 ON THE PROOF NECESSARY TO ESTABLISH THE.M. 
 
 ILLUSTRATIVE CASES. 
 XO. 
 
 8. Parrott v. Thacher. — A sinq;le witness insufficient if contradicted .... 85 
 
 9. Fleet V. Marion. — Proof of usages of other trades 90 
 
 NOTES. 
 SECTION 
 
 50. General customs are judicially noticed 96 
 
 51. But particuliir usages and customs must bo pi'iiv(Nl 96 
 
 52. Burden of proof — Custom must be proved 97 
 
 53. A single witness may prove a custom 97 
 
 54. But not if his testimony be contradicted 98 
 
 55. Mode of proving usages and customs — Testimony of wilncssos 99 
 
 56. Same — Adjudged cases 102 
 
 57. Who may be called as witnesses 103 
 
 58. Order of proof — Proper questions 103 
 
 59. Quantum of evidence 104 
 
 60. Law and fact 104 
 
 61. Evidence of customs in diff^Tont |il ict'S or ill olhoi' Ir uli^-i 105 
 
 02. Customs must be conslrnril <lr.clly 107 
 
 63. Conflict of iaws 110 
 
 64. Pleading . 112 
 
TABLE OF CONTENTS. . ix 
 
 CHAPTER III. 
 
 ON THEIR VALIDITY AND EFFECT IN DIFFERENT RELATIONS AND 
 
 OCCUPATIONS. 
 
 ILLUSTBATITE CASES. 
 NO. PAGE 
 
 10. Renner v. Bank of Columbia. — Banks and banking, and negotiable and 
 
 assignable paper — Usages as to demand and notice 116 
 
 11. Gordon-v. Little. — Common carriers — Usages regarding their general liabil- 
 
 ity, and tlie meaning of terms in bills of lading 123 
 
 12. Farmers and Mechanics^ Bank v. Gham,plain Transportation Company. — 
 
 Same— Usages excusing notice of arrival of goods 133 
 
 13. Balkley v. Derby Fishing Comjoany. ^ Corporations — Usages contrary to 
 
 charter powers 145 
 
 14. Harper v. City Insurance Company. — Fire insurance — Customary use of 
 
 prohibited articles 148 
 
 15. Walsh T. Homer. — Marine insurance — Usage may excuse p, deviation . . . 160 
 
 16. Wigglesworth v. Dallison. — Landlord and tenant — Custom as to waygoing 
 
 crop 169 
 
 17. Holeroft v. Barber Master and servant — Usage as regulating term of ser- 
 
 vice 175 
 
 18. Wanng v. Cb-ady. — Partnership — Powers of partner maybe enlarged by 
 
 usage 178 
 
 19. Goodenow V. Tyler. — Principal and agent — Usage governs agents' powers . 180 
 
 20. Jb»es V. 5o«)dew. — Vendor and purchaser — Usage as to warranty . . . .186 
 
 21. Conner v. Robinson. — Same — Usage as to measurement and weight . 190 
 
 22. Esterly v. Cole. — Same — Interest charged by custom . 198 
 
 23. Priestley v. Pratt. — Same — Custom as affecting change of possession . . 201 
 
 NOTES. 
 
 I, Banks and Banking, and Negotiable and Assignable Paper. 
 
 SECTION 
 
 65. Bank officers — Powers of, as affected by usage 205 
 
 66. Same — Power to certify checks 205 
 
 67. Same — Proper officer to receive payments or deposits 20' 
 
 68. Banks — Negotiable paper — Usage as to demand and notice 20 i 
 
 69. Same — Demand always necessary 207 
 
 70. Same — Discordant decisions 208 
 
 71. Usage and days of grace 208 
 
 72. Duties of bank as collecting agent ._ 20.) 
 
 73. Payment by bank must bj in good money — Usage 210 
 
 74. Same — Payment of forged check 211 
 
 75. Note voluntarily cut in two — Usage to pay only half 212 
 
 76. Bank — .Boreo Tide holder 213 
 
 77. Past-due negotiable paper — Equities 214 
 
 II. Common Carriers. 
 
 78. Liability of carriers created by custom 214 
 
 79. Delivery of goods to carrier as controlled by custom 215 
 
 80. Delivery of baggage by passenger ... ... 217 
 
TABLE OF CONTENTS. 
 
 SECTION PAGB 
 
 81. Usage must be strictly followed 218 
 
 82. Complete delivery not altered by usage 218 
 
 83. Liability for property while in transit 221 
 
 84. Stowage of goods as affected by custom 221 
 
 85. Delivery by carrier as controlled by custom 222 
 
 86. Delivery by carrier — Continued 224 
 
 87. Notice required by law, but waived by usage 225 
 
 88. Oases where the alleged custom did not control 227 
 
 89. Cannot prevail against express directions 228 
 
 90. Delivery on prohibited days 229 . 
 
 91. Means for delivery 531 
 
 92. Usage may enlarge carrier's duty 231 
 
 93. Complete delivery not affected by usage 231 
 
 94. Express companies and delivery by 231 
 
 95. Same — Cases where usage did not control 232 
 
 96. Same — Usage permitted to relax their obligations 233 
 
 97. Connecting carriers 235 
 
 98. The carrier's charges 236 
 
 99. Power of carrier to sell goods in his charge 238 
 
 100. The carrier's lien as affected by usage 238 
 
 101. Bills of lading and restrictive contracts 242 
 
 102. Statutory exemptions cannot be waived by usage 243 
 
 III. Corporations. 
 
 103. The ancient doctrines concerning corporate capacity and assent as affected 
 
 by usage 243 
 
 104. Officers and agents of corporations 244 
 
 105. Contracts not according to mode prescribed — Usage 245 
 
 106. Lien of corporation on shares of stockholder 246 
 
 107. Transfer of stock — Notice 248 
 
 IV. Insurance. 
 
 108. Usages in the law of insurance 248 
 
 109. Mr. Abnotjld's four rules 250 
 
 110. Every general usage jo;-ima /acie part of the policy — Marine insurance . . 250 
 
 111. Commencement and end of risk 252 
 
 112. Deviation 253 
 
 113. General average 255 
 
 114. Extent of the policy 256 
 
 115. Apportionment of premium — Adjustment 256 
 
 116. Other cases 257 
 
 117. Every general usage ^nma /acie part of the policy — Fire insurance . . . 258 
 
 118. Customary incidents of the business insured 258 
 
 119. Increase of risk 261 
 
 120. Changes in adjoining premises 263 
 
 121. Amount of loss 264 
 
 122. Payment of losses — Mutual companies 2i4 
 
 123. Reinsurance 265 
 
 124. Life insurance — Payment of premiums — Policy 265 
 
 126. Other cases 267 
 
TABLE OF CONTENTS. XI 
 
 V. Landlord and Tenant. 
 
 SECIION PAGB 
 
 126. Customs in the law of landlord aud tenant 267 
 
 127. As to the " waygoing " crop 268 
 
 128. Other customs 269 
 
 129. As to term of tenancy 270 
 
 130. Explaining terms in lease 271 
 
 131. As to fixtures 271 
 
 132. Kot admissible to contradict lease 272 
 
 133. When lease not inconsistent with custom 273 
 
 VI. Master and Servant — Employer and Employee. 
 
 134. As to terms or conditions of service 276 
 
 135. As to the proper performance of a service 277 
 
 136. As to wages and compensation 278 
 
 137. Contract not wholly performed — (Quantum meruit 279 
 
 VII. Partnership. 
 
 138. Powers of partners may depend on custom 279 
 
 139. Usage as to name of firm 282 
 
 140. Common report cannot prove a partnership 282 
 
 141. But usage may be controlling as to' third persons 283 
 
 VIII. Principal and Agent. 
 
 142. Agency must be executed in accordance with usage 284 
 
 143. Authority of agent 280 
 
 144. Usages of the stock exchange 287 
 
 145. Delegation of agent's authority , 288 
 
 146. Power to sell on credit 289 
 
 147. Power to pledge goods 290 
 
 148. Insurance of goods in hands of agent 291 
 
 149. Payment to agent 291 
 
 150. Payment— Set-off 292 
 
 151. The agent's compensation 293 
 
 152. The agent's compensation, continued — The rules of law as to, cannot be 
 
 overthrown by usage 294 
 
 153. Usage cannot excuse a disregard of instructions 297 
 
 154. Liability of principal and agent on contracts 300 
 
 155. Attorney and client . ; 303 
 
 IX. Vendor and Purchaser. 
 
 166. Usages of trade affecting sales 303 
 
 157. Terms of sale— Price — Credit 305 
 
 158. The rule caveat emptor — Warranties on sales 306 
 
 159. Warranty of goodness— Continued 307 
 
 160. Warranty— Sale by sample 308 
 
 161. Warranty — Sales by manufacturers 309 
 
 162. Pledgeor and pledgee .310 
 
 163. Sales by auction 310 
 
 164. Rescission of contract by buyer 4 811 
 
 165. Delivery of goods — Passing of title 813 
 
XU TABLE OF CONTENTS. 
 
 SECTION PAGB 
 
 166. Payment 315 
 
 157. Interest — When allowed by custom 316 
 
 X. Miscellaneous, 
 
 168. The question of negligence as affected by custom 318 
 
 169. Same — As affecting the duties of common carriers 319 
 
 170. Same — As affecting the question of diligence in other bailments .... 323 
 
 171. Same — As affecting the contributory negligence of a servant 324 
 
 172. Customs to excuse negligence rejected 328 
 
 173. Same — To show nuisance 330 
 
 174. Frauds 330 
 
 175. Trespass 331 
 
 176. Use of watercourses 332 
 
 177. Ofaoes and ofBcers 333 
 
 178. Crimes 333 
 
 CHAPTER IV. 
 
 ON THEIR ADMISSIBILITY TO EXPLAIN WKITTEN AND OTHEK 
 EXPRESS CONTRACTS. 
 
 ILLUSTEATITK CASES. 
 
 iro. 
 
 24. Smith v. Wilson. — To explain words and phrases therein 335 
 
 25. Cooper v. Kane. — To add terms and incidents thereto 339 
 
 26. Humfrey v. Dale. — Same principle 342 
 
 27. Ryerss v. Wheeler. — To interpret wills 351 
 
 28. Tilley v. City of Chicago. — Not admissible where no contract is shown . 356 
 
 NOTES. 
 RECTION 
 
 179. Parol evidence not receivable to vary or contradict a writing 364 
 
 180. Admissibility of evidence of usage — Views of Mr. Bro with 365 
 
 181. Usage may explain technical or unintelligible terms 367 
 
 182. Classification of the cases 368 
 
 183. Usage admissible to add unexpressed terms to written contracts 369 
 
 184. Incidents annexed to contracts generally 370 
 
 185. Incidents added by usage cannot establish a contract 370 
 
 186. That parties differed as to the usage does not destroy the contract .... 371 
 
 187. Usage not admissible to supply disputed term 371 
 
 188. Contracts of sale — Usage as to quality and description of goods .... 372 
 
 189. Same — Usage as to quantity and price 375 
 
 190. Same — Other cases 378 
 
 191. Principal and agent — Usage and custom 382 
 
 192. Other cases — Suretyship — Attorney and client 386 
 
 193. Bailment or sale 387 
 
 194. When admissible to explain deeds 387 
 
 195. Sporting usages ;589 
 
 196. Mines and raining ' 3qq 
 
 197. Contracts for labor and materials 39O 
 
TABLK or GOM'KISTS. XUl 
 
 SECTION PAGE 
 
 198. Master and servant — Contracts of service 394 
 
 199. Same — To explain the duties of an emplo3'ment under a written contract . 397 
 
 200. Usage admissible in explanation of wills 398 
 
 201. Evidence of usage to explain words and phrases in policies of insurance . .401 
 
 202. Same — Marine insurance 401 
 
 203. Same — Fire policies 40 "> 
 
 204. To explain bills of lading 40^ 
 
 205. To explain charter-parties and other maritime contracts 40';) 
 
 CHAPTER V. 
 
 ON THEIR INADMISSIBILITY WHEN IN CONFLICT WITH CON- 
 TRACTS, STATUTies, OR LAWS. 
 
 ILLUSTRATIVB CASES. 
 NO. 
 
 29. Blaekett v. Royal Exchange Assurance Company. — Usages contradicting 
 
 terms of written contracts inadmissible 443 
 
 30. Brown v. Foster. — Usages in conflict with express agreements inadmissible 417 
 
 31. Noble v. Dwell. — Customs contrary to statutes bad 420 
 
 32. Barnard V. Kellogg. — Usages in conflict with rules of law inadmissible . .424 
 38. Raisin v. Clark. — Usages in conflict with rules of public policy illegal . . 431 
 
 NOTES. 
 SECTION 
 
 206. Usages inadmissible when repugnant to express contracts 434 
 
 207. Usages repugnant to express contracts — Carrier and customer 43:"i 
 
 208. Same — Insurances policies • i'iH 
 
 209. Same — Landlord and tenant 44B 
 
 210. Same — Contracts of hiring 44J 
 
 211. Same — Contracts for worl£ and labor 44) 
 
 212. Same — Principal and agent 444 
 
 213. Same — Bankers and brokers — Bills and notes 44-; 
 
 214. Same — Vendor and purchaser 447 
 
 215. Same — Miscellaneous 452 
 
 216. The effect of statutes on usages and customs 453 
 
 217. Words defined by act of Parliament — Contrary usages void 454 
 
 218. Statutes as to officers' duties — Inconsistent usages 45"i 
 
 219. Statutes prohibiting usury — Contrary usages 458 
 
 220. Statutes as to shipping-articles and carriers — Customs 458 
 
 221. Miscellaneous statutes and repugnant usages 460 
 
 222. Statutory exemptions cannot be waived by usage 462 
 
 223. Statutes ma}' be construed by usage 462 
 
 224. Municipal charters and powers as affected by usage 463 
 
 225. Customs and usages not inadmissible because in conflict with common-law 
 
 rules 465 
 
 226. Contradictory expressions of some courts on this subject 4d5 
 
 227. Same — Conflicting decisions 467 
 
 228. Banks and banking — Usages against legal rules admitted 467 
 
 229. Same — Usages against legal rules rejected 467 
 
XIV TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 230. Common carriers — Usages in conflict with rules of law admitted . . , .468 
 
 231. Same — Usages in conflict with rules of law rejected 469 
 
 282. Corporations — Usages against common-law rules admitted 469 
 
 233. Insurance — Usages in conflict with legal rules admitted 469 
 
 234. Same — Usages i.i conflict with legal rules rejected 470 
 
 235. Landlord and tenant — Customs against law admitted 470 
 
 236. Contracts for personal services — Customs against law admitted 471 
 
 237. Same — Customs against law rejected . 471 
 
 238. Partnership — Usages against legal rules admitted 471 
 
 239. Principal and agent — Usages in conflict with rules of law admitted . . .471 
 
 240. Same — Usages in conflict with rules of law rejected 471 
 
 241. Vendor and purchaser — Usages against legal rules admitted 472 
 
 242. Same — Usages against legal rules rej ected 472 
 
 243. Miscellaneous — Usages contradicting rules of law admitted 472 
 
 244. Same — Usages contradicting rules of law rejected 473 
 
 245. The necessity for reviewing the contradictory cases 473 
 
 246. The facts and opinions of the judges in the above cases 474 
 
 247. Same — The above cases examined 484 
 
 248. The meaning of the rule that usage must not conflict with the law . . . 486 
 
TABLE OF ILLUSTRATIVE CASES. 
 
 PAGE 
 
 Baknabi) V. Kellooo 424 
 
 BlACKETT O. BOYAL EXCHANGE ASSTTRANCE OotlPANT 413 
 
 Brown ». Foster 417 
 
 B0LKLET V. Derby Fishing Compant 145 
 
 Conner v. Robinson 190 
 
 •Cooper v. Kane 389 
 
 EsTKBLT V. Cole 198 
 
 Farmers and Mechanics' Ban-k v. Champlain Transportation Company . 133 
 
 Fleet v. Murton 90 
 
 <3-ooDENo'w V. Tyler ] 80 
 
 •Gordon v. Little . 128 
 
 Harper v. City Insurance Company 1 18 
 
 Holcropt v. Barber 1 75 
 
 HuMFREY V. Dale 842 
 
 Jones v. Bowdbn ... ... 186 
 
 Metcalp v. Weld 1,2 
 
 Noble v. Dkrell 4J0 
 
 Pabrott v. Thacher 85 
 
 Paxton v. Cotjbtnay 11 
 
 Priestley v. Pratt 201 
 
 Baisin v. Clark 4 )1 
 
 Eenneb v. Bank op Columbia 116 
 
 Eyerss v. Wheeler 851 
 
 Seagar v. Sligebland 9 
 
 Sewell v. Corp 2 
 
 Smith v. Wilson .335 
 
 Stevens v. Eeeveb 6 
 
 TiLLEY V. City op Chicago 336 
 
 Walsh v. Homeb 160 
 
 Wabinow. Geady 178 
 
 Wiggles-worth i>. Dallison 1S9 
 
 "Womersley v. Dally 5 
 
 Wood v. Wood . 3 
 
 fxv) 
 
TABLE OF CASES CITED. 
 
 Abbot V. Hermon, 7 Greenl. 118. p. 244, 
 Aberdeen Co. i,-. Sutter, 2 Pat. Sc. App, 
 
 1106. p. 282. 
 Ackenbnrgh v. McCool, 36 Ind. 473. p, 
 
 294. 
 Acker v. Campbell, 23 "Wend. 372. 
 
 314. 
 Ackerman ». Shelp, 8 N. J. L. 125. p. 
 
 27. 
 Ackley v. Kellogg, 8 Cow. 223. p. 135. 
 Adams v. Johnson, 15 111. 345. p. 309. 
 Adams v. Morse, 51 Me. 479. p. 332. 
 Adams v. Otterback, 15 How. 539. pp. 
 
 30, 36, 41, 53. 
 Adams v. Palmer, 30 Pa. St. 346. p. 317. 
 Adams v. Peters, 2 Car. & Kir. 723. p. 
 
 48. 
 Adams u. Pittsburg Ins. Co., 76 Pa. St. 
 
 411. pp. 35, 99. 
 Adams u.Wordley, 1 Mee. &W. 374. p, 
 
 364. 
 Adams Express Co. v. Milton, 11 Bush, 
 
 49. p. 317. 
 ^tna Ins. Co. v. Jackson, 16 B. Mon. 242. 
 
 p. 261. 
 Agnew V. Johnston, 22 Pa. St. 471. p. 
 
 238. 
 Alabama, etc., B. Co. v. Kidd, 29 Ala. 
 
 221 ; 35 Ala. 209. pp. 225, 409. 
 Albatross (The) v. Wayne, 16 Ohio, 513. 
 
 pp. 45, 101. 
 Aldred's Case, 9 Eep. 58 b. p. 36. 
 Alexander v. Alexander, 2 Ves. 640. p. 
 
 288. 
 Alexander ». Burchfield, 7 Man. & G. 
 
 1061. p. 209. 
 Alexander v. Vanderzee, L. R. 7 0. P. 
 
 530. p. 378. 
 Allegre v. Maryland Ins. Co., 2 Gill & J. 
 
 136; 6 Har. & J. 408; 20 Am. Dec. 
 
 425 ; 14 Am. Dec. 289. p. 402. 
 
 Allen V. Dunn, 15 Me. 292. p. 283. 
 Allen V. Dykers, 3 Hill, 593. pp. 310, 
 
 445. 
 Allen V. Insurance Co., 2 Md. 111. p. 
 
 262. 
 Allen V. Lyles, 35 Miss. 513. p. 107. 
 Allen V. Merchants' Bank, 16 Wend. 482; 
 
 22 Wend. 45. pp. 41, 101, 102, 103, 
 
 209. 
 Allen ■). Ogden, 1 Wash. C. Ct. 174. p. 
 
 286. 
 Allen V. Eostain, 11 Serg. & E. 373. p. 
 
 282. 
 Allen V. Sewall, 2 Wend. 327. pp. 144, 
 
 215. 
 Allen V. State Bank, 1 Dev. & B. Eq. 3. 
 
 pp. 212, 213, 475, 485. 
 Allen V. Stevens, 29 N. J. L. 509. p. 27, 
 Allen V. Sundius, 1 Hurl. & Colt. 123. 
 
 pp. 297, 383. 
 Allen V. Vanderpool, 6 Johns. 69 ; 5 Am. 
 
 Dec. 160. p. 290. 
 All Saints' Church v. Lovett, 1 Hall, 141, 
 
 p. 463. 
 AUshouse v. Eamsay, 6 Whart. 331. p. 
 
 110. 
 Alston V. Eowles, 13 Fla. 123. p. 330. 
 Alvord 0. Baker, 9 Wend. 323. p. 316. 
 Amee v. Wilson, 22 Me. 116. p. 317. 
 American Bible Society «. Wetmore, 17 
 
 Conn. 186. p. 398. 
 American Central Ins. Co. v. McLana- 
 
 than, 11 Kan. 533. p. 284. 
 American Express Co. v. Robinson, 72 
 
 Pa. St; 274. p. 232. 
 American Express Co. ». Sohier, 55 111. 
 
 140. pp. 232, 233, 364. 
 American, etc., Express Co. v. Wolf, 79 
 
 Dl. 430. pp. 232, 235. 
 American Ins. Co. ii. Oakley, 9 Paige, 
 
 496. p. 244. 
 
 ( xvii ) 
 
XVIU 
 
 TABLE OF CASES CITED. 
 
 Anderson v. Kneeland, 6 Cow. 354. p. 
 
 286. 
 Anderson v. Pitcher, 2 Bos. & Pul. 168. 
 
 pp. 192, 337. 
 Andrews v. Kneeland, 6 Cow. 654, p. 
 
 303. 
 Andrews v. Mellish, 5 Taun. 502. p. 254. 
 Andrews v. Roach, 3 Ala. 590. p. 409. 
 Andrews v. Thomas, 1 Cow. 225. pp. 
 
 855, 399. 
 Angell V. Keith, 24 Vt. 371. p. 82. 
 Angerstein v. Handson, 1 Cromp. M. & R. 
 
 780. p. 267. 
 Anglesey v. Hatherton, 10 Mee. & W. 
 
 218. p. 17. 
 Anonymous, 12 Modern, 415. p. 294. 
 Anonymous, J. B. Moo. 27. p. 173. 
 Anstee v. Nelms, 1 Hurl. & N. 225. p. 
 
 400. 
 Anstill V. Crawford, 7 Ala. 335. p. 43. 
 Antomarchi o. Russell, 63 Ala. 356. pp. 
 
 112, 473. 
 Appleman v. Fisher, 34 Md. 540. p. 377. 
 Archer w. Bokenham, 11 Modern, 161. 
 
 pp. 62, 103. 
 Archer v. Merchants', etc., Ins. Co.i 43 
 
 Mo. 434. pp. 259, 260. 
 Arents v. The Commonwealth, 18 Gratt. 
 
 750. p. 214. 
 Armat v. Union Bank, 2 Cranch C. Ct. 
 
 180. p. 212. 
 Armstrong v. Burrows, 6 Watts, 266. p. 
 
 364. 
 Arnold V. Mayor of Poole, 4 Man. & G. 
 
 893. pp. 17, 243, 244. 
 Arnold v. Suffolk Bank, 27 Barh. 424. p. 
 
 246. 
 Arthur v. The Cassius, 2 Story, 81. p. 
 
 238. 
 Ashe o. De Eosset, 8 Jones L. 240. p. 
 
 81. 
 Ashforth v. Redford, L. R. 9 C. P. 20. 
 
 p. 378. 
 Ashworth V. Outram, 37 L. T. (n. s.) 85. 
 
 p. 330. 
 Astor V. Union Ins. Co., 7 Cow. 203. p. 
 
 401. 
 Atkins V. Howe, 18 Pick. 16. p. 810. 
 Atkinson v. Allen, 29 Ind. 875. p. 451. 
 Attorney-General v. Benjamin, 2 Ves. 
 
 643. p. 288. 
 
 Attorney-General «. Drummond, 1 Dr. & 
 
 War. 353 ; 2 H. L. Cas. 837. pp. 368, 
 
 898. 
 Attorney-General o. Dublin, 38 N. H. 
 
 512. p. 400. 
 Attorney-General ». Poster, 10 Ves. 336. 
 
 pp. 462, 463. 
 Attorney-General v. Mathias, 27 L. J. 
 
 (Ch.)761. p. 381. 
 Attorney-General v. Newcombe, 14 Ves. 
 
 1. pp. 462, 463. 
 Attorney-General a. Parker, 3 Atk. 576. 
 
 pp. 462, 463. 
 Attwood V. Small, 6 CI. & Fin. 232. p. 
 
 364. 
 Atwater v. Clancy, 107 Mass. 369. p. 303. 
 Atwell V. Miller, 11 Md. 348. p. 237. 
 Aughinbaugh o. Coppenheffer, 56 Pa. 
 
 St 347. p. 267. 
 Auriol V. Thomas, 2 Term Rep. 52. p. 
 
 293. 
 Austin V. Bingham, 31 Vt. 577. p. 315. 
 Avery v. Adams, 69 Mo. 603. p. 388. 
 Avery v. Stewart, 2 Conn. 69. p. 377. 
 Ayers V. Metcalf, 39 111. 307. p. 52. 
 Aymer v. Astor, 6 Cow. 266. p. 436. 
 Ayrault v. Pacific Bank, 47 N. Y. 570. 
 
 p. 209. 
 Ayres v. Weed, 16 Conn. 290. p. 399. 
 
 Babcock v. May, 4 Ohio, 334. p. 254. 
 Babcock v. Montgomery, etc., Ins. Co., 6 
 
 Barb. 637 ; 4 N. Y. 328. p. 406. 
 Bacon v. City of Boston, 3 Cush. 174. p. 
 
 329. 
 Bacon, M. S. (The), ». Erie, etc, Transp. 
 
 Co., 11 Pittsb. L. J. 85. p. 227. 
 Backus V. The Marengo, 6 McLean, 487. 
 
 p. 408. 
 Baglehole ». Walters, 3 Camp. 164. p. 
 
 188. 
 Bailey v. Appleyard, 8 Nev. & P. 267. 
 
 p. 26. 
 Bailey «. Bensley, 87 111. 556. p. 47. 
 Bailey v. Clark, 6 Pick. 872. p. 283. 
 Bailey «. New Haven, etc., R. Co., 107 
 
 Mass. 496. p. 329. 
 Bailey «. Shaw, 24 N. H. 297. p. 238. 
 Bailiffs V. Bricknell, 2 Taun. 120. p. 463. 
 Bailiffs, etc., of Ipswich v. Martin, Cro. 
 
 Jac. 411. p. 243. 
 
TABLE OF CASES CITED. 
 
 XIX 
 
 Bain v. Brown, 7 Lans. 506. p. 294. 
 Baines v. Ewing, L. B. 1 Exch. 320. p. 
 
 286. 
 Baird o. Fortune, 7 Jur. (n. s.) 926. p. 
 
 366. 
 Baird v. Matthews, 6 Dana, 129. p. 307. 
 Baker v. Cave, 1 Hurl. & N. 678. p. 288. 
 Balcer v. Drake, 66 N. Y. 518. pp. 310, 
 
 484. 
 Baker v. Ludlow, 2 Johns. Cas. 289. p. 
 
 401. 
 Baker ». Payne, 1 Ves. 459. p. 336. 
 Balcer ». Squier, 1 Hun, 448; 3 N. Y. S. 
 
 C. (J. & S.) 465. p. 372. 
 Bald B. Eaynor, 1 Mee. & W. 343. p. 
 
 386. 
 Baldcy v. Parker, 2 Bam. & Cress. 37. p. 
 
 312. 
 Baldwin v. American Express Co., 23 HI. 
 
 197. pp. 232, 233, 235. 
 Baldwin v. Bank of Louisiana, 1 La. An. 
 
 13. p. 209. 
 Baldwin v. Winslow, 2 Minn. 213. p. 
 
 364. 
 Balfour v. Wilkins, 9 Cent. L. J. 56. p. 
 
 408. 
 Ball V. Gates, 12 Meto. 491. p. 82. 
 Baltimore, etc., R. Co. v. Paunce, 6 Gill, 
 
 68. p. 468. 
 Baltimore, etc., E. Co. v. Glenn, 28 Md. 
 
 287. p. 110. 
 Bancroft v. Peters, 4 Mich. 619. p. 236. 
 Bandel v. Isaac, 14 Md. 202. p. 462. 
 Banister v. Hodgson, 2 Camp. 488. p. 
 
 227. 
 Bank of Alexandria v. Deneale, 2 Cranoh 
 . , C. Ct. 488. p. 206. 
 
 Bank of Columbia v. Fitzhugh, 1 Har. & 
 
 G. 239. pp. 53, 207. 
 Bank of Columbia v. Magruder, 6 Har. 
 
 & J. 172. p. 207. 
 Bank of Columbia v. Patterson, 7 Cranoh, 
 
 299. p. 244. 
 Bank of Commerce o. Bissell, 72 N. Y. 
 
 615. pp. 229, 435, 437. 
 Banbof Commerce v. Union Bank, 3 N. 
 
 Y. 230. pp. 211, 468. 
 Bank of the Commonwealth v. Wister, 2 
 
 Pet. 318. p. 210. 
 Bank of England v. Anderson, 3 Bing. 
 N. C. 666. p. 462. 
 
 Bank of Metropolis v. Bank, 1 How. 284. 
 
 p. 205. 
 Bank of Mobile v. Huggins, 3 Ala. 206, 
 
 p. 209. 
 Bankof United States v. Bank of Georgia, 
 
 10 Wheat. 333. p. 211. 
 Bank of United States v. Dandridge, 12; 
 
 Wheat. 83. p. 244. 
 Bank of United States ». Davis, 2 Hill,. 
 
 451. p. 209. 
 Bank of United States ii. Goddard, 5 Ma- 
 son, 366. p. 209. 
 Bank of United States v. Norwood, 1 Har> 
 
 & J. 426. p. 244. 
 Bank of United States v. Sill, 5 Conn. 
 
 106 ; 13 Am. Deo. 44. p. 213. 
 Bank of Utica v. Smith, 18 Johns. 230. 
 
 p. 122. 
 Bank of Utica v. Wager, 2 Cow. 712. p. 
 
 458. 
 Bank of Virginia v. Ward, 6 Munf. 166. 
 
 p. 212. 
 Bank of Washington v. Triplctt, 1 Pet. 
 
 25. pp. 53, 58, 207. 
 Bankus v. The State, 4 Ind. 114. pp. 62, 
 
 460. 
 Baptist Church «. Mulford, 3 Halst. 182. 
 
 p. 244. 
 Barber v. Brace, 3 Conri. 9. pp. 8, 143, 
 
 222, 324. 
 Barber v. Dennis, 6 Modern, 69. p. 
 
 294. 
 Barber v. Gingell, 3 Esp. 60. p. 211. 
 Barclay v. Gooch, 2 Esp. 571. p. 181. 
 Barclay v. Kennedy, 3 Wash. C. Ct. 350. 
 
 pp. 52, 98, 317. 
 Bargate v. Shortridge, 5 H. L. Cas. 297. 
 
 p. 246. 
 Bargett v. Orient Mutual Ins. Co., 3 Bosw. 
 
 385. pp. 410, 465. 
 Baring o. Corrie, 2 Barn. & Aid. 138. p. 
 
 292. 
 Baring v. Stanton, L. R. 3 Ch. Div. 502. 
 
 p. 295. 
 Barker v. Borzone, 48 Md. 474. p. 409. 
 Barker v. Greenwood, 2 You. & Coll. 418. 
 
 p. 292. 
 Barker v. Valentine, 10 Gray, 341. p. 
 
 214. 
 Barksdale v. Brown, 1 Nott & M. 517 ; 9 
 Ani. Deo. 720. ' pp. 67, 192, 299. 
 
XX 
 
 TABLE OF CASES CITED. 
 
 Barlow w. Lambert, 28 Ala. 704. pp. 23, 
 
 Bayliffe i>. Butterworth, 1 Eich. 425. 
 
 868, 441. 
 
 pp. 47, 48, 284, 287. 
 
 Barnard v. Adams, 10 How. 270, p. 293. 
 
 Baynes v. Pry, 15 Ves. 120. p. 293. 
 
 Barnard v. Kellogg, 10 Wall. 383. pp. 
 
 Bazin v. Steamship Co., 3 Wall. jr. 229. 
 
 306, 424, 466, 481, 484. 
 
 pp. 229, 437. 
 
 Barnard v. Yates, 1 Nott & M. 142. p. 
 
 Beach v. ^arl of Jersey, 8 Bam. & Cress. 
 
 306. 
 
 870; 1 Barn. & Aid. 550. p. 354. 
 
 Barnes v. Ingalls, 39 Ala. 193. pp. 107, 
 
 Beach u. Forsyth, 14 Barb. 499. p. 292. 
 
 277. 
 
 Beacon Life, etc., Assur. Co. o. Gibb, 1 
 
 Barnes v. Ontario Bank, 19 N. Y. 152. 
 
 Moo. P. 0. C. (n. s.) 73. p. 260. 
 
 p. 245. • 
 
 Beale ». Creswell, 3 Md. 196. p. 293. 
 
 Barnet ». Steinbaoh, 1 W. N. 0. 335. p. 
 
 Beale v. Pettit, 1 Wash. C. Ct. 241. p. 
 
 83. 
 
 82. 
 
 Barnett v. Lambert, 15 Mee. & W. 489. 
 
 Beals V. Terry, 2 Sand£ 127. pp. 69, 449. 
 
 p. 289. 
 
 Bean v. Bolton, 3 Phila. 87. p. 73. 
 
 Barnett ». Smith, 17 HI. 565. p. 283. 
 
 Bearse v. Ropes, 1 Sprague, 331. p. 222. 
 
 Barnett v. Stanton, 2 Ala. 181. p. 311. 
 
 Beatson v. Haworth, 6 Term Kep. 531. 
 
 Baron v. Plaeide, 7 La. An. 229. p. 398. 
 
 p. 254. 
 
 Barrett v. Deere,, Moo. & M. 200. p. 
 
 Beatty v. Gregory, 17 Iowa, 109. pp. 45, 
 
 292. 
 
 46. 
 
 Barrett e. Swan, 17 Me. 180. p. 283. 
 
 Beatty t>. Marine Ins. Co., 2 Johns. 109; 
 
 Barrett v. Williamson, 4 McLean, 589. 
 
 8 Am. Dec. 401. p. 146. 
 
 pp. 45, 324. 
 
 Beau V. Bloom, 3 Wils. 458. p. 65. 
 
 Barrington v. Justice, 2 Clark (Pa.), 501. 
 
 Beaufort v. Swansea, 3 Exch. 413. p. 
 
 p. 267. 
 
 366. 
 
 Bartholomew o. Leech, 7 Watts, 472. p. 
 
 Beaumont ». Pell, 2 P. Wms. 138. p. 
 
 294. 
 
 398. 
 
 Bartlett u. Pentland, 10 Barn. & Cress. 
 
 Beavan v. Delahay, 1 H. Black. 5. pp. 
 
 760. pp. 48, 251, 252, 292. 
 
 268, 269. 
 
 Barton v. Moses, 32 HI. 50. p. 294. 
 
 Beckford v. Crutwell, 5 Car. & P. 242. 
 
 Barton v. McKelway, 22 N. J. L. 165. 
 
 p. 136. 
 
 pp. 53, 372. 
 
 Beckwith v. Farnam, 5 R. L 230. p. 
 
 Bass ». Olive, 4 Moo. & S. 13. p. 211. 
 
 307. 
 
 Bassett v. Salisbury Man. Co., 43 N. H. 
 
 Bedford d. Flowers, 7 Humph. 242. p. 
 
 567. p. 333. 
 
 441. 
 
 Bastard v. Bastard, Show. 81. p. 236. 
 
 Beebe v. Koberi, 12 Wend. 413. p. 308. 
 
 Bastard v. Smith, 2 Moo. & E. 129. p. 
 
 Beeston v. Beeston, 1 Exch. Div. 13. p. 
 
 331. 
 
 288. 
 
 Bates V. Bank of Alabama, 2 Ala. 452. 
 
 Beirne v. Dodd, 3 Sandf. 89; 5 N. Y. 73. 
 
 p. 244. 
 
 pp. 808, 309. 
 
 Bateson v. Green, 5 Term Eep. 412. p. 
 
 Beirne c. Dodd, 1 Seld. 95. p. 429. 
 
 194. 
 
 Belcher v. Parsons, Amb. 219. pp. 284, 
 
 Batson v. Donovan, 4 Barn. & Aid. 30. 
 
 285. 
 
 p. 319. 
 
 Bell «. Hagerstown Bank, 7 Gill, 227. 
 
 Baxter v. Leland, 1 Blatchf. 526. pp. 
 
 pp. 81, 206. 
 
 222, 436. 
 
 Bell V. Eeed, 4 Binn. 127; 5 Am» Dec 
 
 Baxter v. Massasoit Ins. Co., 13 Allen, 
 
 398. pp. 129, 131. 
 
 320. p. 265. 
 
 Boll V. Smith, 99 Mass. 617. p. 435. 
 
 Baxter v. Nurse, 1 Car. & Kir. 10; 6 
 
 Bell V. Warden, WiUes, 202. p. 31. 
 
 Man. & G. 935. pp. 277, 278. 
 
 Bellamy ». Sabine, 2 Phill. L. 425. p. 
 
 Baxter v. Bodman, 3 Pick. 435. p. 282. 
 
 811. 
 
TABIiB OF CASES CITEli. 
 
 XXI 
 
 Bellemire v. Bank of United States, 4 
 
 Whart. 105. p. 209. 
 Bend v. Georgia Ins. C!o., Ang. on Ins., 
 
 ?25. p. 439. 
 Benedict v. Davis, 2 McLean, 843. p. 
 
 284. 
 Banner v. Clemens, 58 Pa. St. 24. p. 110. 
 Benner v. Equitable Ins. Co., 6 Allen, 
 
 222. p. 237. 
 Bennett v. Drew, 3 Bosw. 355. p. 805. 
 Bennett, Ex parte, 10 Ves. 381. p. 295. 
 Bennett v. Holmes, 82 Ind. 108. p. 284. 
 Bennett u. Seligman, 82 Mich. 500. p. 
 
 270. 
 Bennington v. Taylor, 2 Lutw. B. 0. 1517. 
 
 pp. 67, 171. 
 Benny v. Pegram, 18 Mo. 191. p. 292. 
 Benny v. Rhodes, 18 Mo. 147. p. 290. 
 Benoit v Conway, 10 Allen, 523. p. 465. 
 Benson v. Chapman, 8 C. B. 967. p. 20. 
 Benyon v. Nettlefold, 8 Mac. & Gr. 94. p. 
 
 365. 
 Berckmans ». Berckmans, 16 N. J. Eq. 
 
 122; 17 N.J. Eq. 453. p. 61. 
 Berg V. Chicago, etc., K. Co. (Sup. Ct. 
 
 Wis.), p. 324. 
 Berkshire Woollen Mills Co. v. Proctor, 
 
 7 Gush. 420. pp. 34, 40, 46, 324. 
 Bernheimer v. Marshall, 2 Minn. 78. p. 
 
 211. 
 BertoUati v. A Cargo of Brimstone, 11 
 
 Cent. L. J. 354. p. 227. 
 Berthoud b. Gordon, 6 La. 679. p. 291. 
 Berry v. Cooper, 28 Ga. 543. p. 242. 
 Besant v. Cross, 10 C. B. 895. p. 364. 
 Bethum v. Turner, 1 Me. 11. p. 332. 
 Bickford v. Parson, 5 C. B. 920. p. 267. 
 Bicknall o. Waterman, 5 R. L 43. p. 307. 
 Biddle v. Reed, 33 Ind. 529. p. 270. 
 Bigger v. Parkinson, 7 Hurl. & N. 956. 
 
 p. 309. 
 Biggs 1). Brown, 2 Serg. & B. 14. p. 269. 
 Billings V. Tolland, etc., Ins. Co., 20 Conn. 
 
 139. p. 262. 
 Birch V. DePeyster, 1 Stark. N. P. 210. 
 
 p. 409. 
 Birchard v. Knapp, 31 Vt. 679. p. 52. 
 Birkett ». Willan, 2 Barn. & Aid. 356. 
 
 pp. 136, 225. 
 Bishop V. Clay Ins. Co., 45 Conn. 430. p. 
 
 100. 
 
 Bishop ». Georgeson, 60 111. 484. p. 283. 
 Bishop of Winchester v. Knight, 1 P. 
 
 Wms. 406. p. 65. 
 Bispham v. Pollock, 1 McLean, 411. p. 
 
 317. 
 Bissel ». Camphell, 54 N. Y. 363. p. 408. 
 Bissell V. Roden, 34 Mo. 63. p. 288. 
 Bissell V. Ryan, 23 HI. 666. pp. 40, 98, 
 
 100. 
 Black V. California Ins. Co., 42 N. T. 393. 
 
 p. 251. 
 Blackett v. Royal Exchange Aesur. Co., 2 
 
 Cromp. & J. 244; 2 Tyrw. 266. pp. 
 
 348, 413, 428, 435, 439, 457. 
 Blacquiere v. Hawkins, 1 Doug. 878. p, 
 
 17. 
 Blakie v. Steihbridge, 5 Jur. (n. s.) 1128. 
 
 p. 222. 
 Blanchard v. Billiard, 11 Mass. 85. pp, 
 
 205, 206. 
 Blanchard v. Isaacs, 8 Barb. 388. pp. 
 
 216, 217. 
 Blanchard v. Page, 8 Gray, 287. p. 4 
 Bland ». Lipsoombe, 4 El. & Bl. 712 ; 1 
 
 Jur. [n. s.) 707; 8 Com. Law Rep. 261 
 
 p. 133. 
 Blankney a. Winstanley, 3 Term Rep. 
 
 279. p. 463. 
 Bleckley v. Munson, 13 Conn. 299. p. 
 
 364. 
 Blewett «. Tregonning, 3 Ad. & E. 554. 
 
 p. 31. 
 Blin V. Mayo, 10 Vt. 56. pp. 135, 141, 
 
 143, 226. 
 Bliss V. Arnold, 8 Vt. 252. p. 300. 
 BTiss V. Irthabitants of Wilbraham, 8 Al- 
 len, 564. p. 328. 
 Bliven v. New England Screw Co., 23 
 
 How. 420. pp. 45, 804, 862, 435. 
 Blizzard v. Walker, 32 Ind. 437. p. 460. 
 Blodgett V. Weed, ll9 Mass. 215. p. 280. 
 Blossom V. Champion, 37 Barb. 554. p. 
 
 229. 
 Blount ». Starkey, 1 Tayl. 110; 2 Hayw. 
 
 (N. C.) 75. ■ p. 315. 
 Blundell v. Catterall, 6 Bam. & Aid. 283. 
 
 p. 193. 
 Blythe v. Richards, 10 Serg. & R. 261 ; 
 
 13 Am. Dec. 672. p. 333. 
 Board v. Cronk, 1 Halst. 119. p. 462. 
 Boardiuan v. Gaillard, 1 Hun, 217. p. 46. 
 
xxu 
 
 TABLE OF CASES CITED. 
 
 Boardman v. Gore, 15 Mass. 331. p. 282. 
 
 Bowen v. Burk, 13 Pa. St. 146. p. 314. 
 
 Boardraan v. Spooner, 13 Allen, 353. pp. 
 
 Bowen v. Jackson, Whart. Dig. 252. p.. 
 
 69, 307, 450. 
 
 130. 
 
 Bocklen v. Hardenbergh, 60 N. Y. 8. 
 
 Bowen v. Newell, 13 N. Y. 290. p. 209. 
 
 p. 283. 
 
 Bowen v. Newell, 5 Sandf. 326. p. 206'.. 
 
 Bocock V. Pavey, 8 Ohio St. 270. p. 288. 
 
 Bowen v. Kutherford, 60 111. 41. pp. 282, 
 
 Boddington v. Sohlencker, 4 Barn. & 
 
 284. 
 
 Adol. 752. p. 209. 
 
 Bowen v. Stoddard, 10 Mete. 381. pp^ 
 
 Bodenham v. Bennett, 4 Price, 31. pp. 
 
 15, 75. 
 
 136, 225. 
 
 Bower v. Smith, 8 Ga. 74. p. 82. 
 
 Bodfish V. Fox, 23 Me. 90. pp. 15, 104, 
 
 Bowie V. Maddox, 29 Ga. 285. p. 284. 
 
 303, 386, 435. 
 
 Bowie !). Napier, 1 McCord, 1. p. 290^ 
 
 Bodine v. Insurance Co., 51 N. T. 117. 
 
 Bowker v. Hoyt, 18 Pick. 555. p. 312. 
 
 p. 289. 
 
 Bowman v. American Express Co., 21 
 
 Bodley v. Craig, 1 B. Mon. 77. p. 74. 
 
 Wis. 152. p. 408. 
 
 Bogert V. Cauman, Anth. 97. p. 458. 
 
 Bowman i;. Horsey, 2 Man. & K. 85. p» 
 
 Boraston v. Green, 16 East, 71. p. 267. 
 
 381. 
 
 Bolton V. Calder, 1 Watts, 360. pp. 22, 
 
 Bowman a. Teall, 23 Wend. 306. pp. 
 
 321. 
 
 136, 137. 
 
 Bond V. Clark, 35 Vt. 577. p. 364. 
 
 Bowen v. Hodgson, 4 Taun. 189. p. 1.36> 
 
 Bond V. Pittard, 3 Mee. & W. 357. p. 
 
 Bowring v. Shepherd, L. B. 6 Q. B. 309. 
 
 284. 
 
 p. 288. 
 
 Bond V. The Cora, 2 "Wash. C. Ct. 84. p. 
 
 Boyce v. The Empress, 3 West. L. J. 174. 
 
 164. 
 
 p. 324. 
 
 Bonelli's Telegraph Co., In re, L. B. 12 
 
 Boj'd V. Graham, 5 Mo. App. 403. p. 45.. 
 
 Eq. 246. p. 245. 
 
 Boyd V. Bhorrock, L. B. 5 Eq. 72. p. 272> 
 
 Bonfield v. Smith, 12 Mee. & W. 405. p. 
 
 Boyd V. Wilson, 83 Pa. St. 319. p. 309.. 
 
 284. 
 
 Boyson b. Coles, 6 Mau. & Sel. 14. p. 
 
 Boon V. The Belfast, 40 Ala. 184. p. 436. 
 
 290. 
 
 Boorman v. Jenkins, 12 Wend. 566. p. 
 
 Brabant v. Wilson, 35 L. J. (Q. B.) 49> 
 
 308. 
 
 p. 17. 
 
 Boorman v. Johnston, 12 Wend. 566. 
 
 Bradbee v. Christ's Hospital, 5 Scott N. 
 
 pp. 303, 382. 
 
 K.70. p. 17. 
 
 Booth V. Pierce, 33 N. Y. 463. p. 305. 
 
 Bradburn v. Foley, 17 Alb, L. J. 483. p> 
 
 Borrekins v. Bevan, 3 Kawle, 37. p. 308. 
 
 78. 
 
 Borup V. Nininger, 5 Minn. 523. p. 208. 
 
 Bradford v. Drew, 5 Meto. 188. p. 324. 
 
 Bosley v. Shanner, 26 Ark. 280. p. 365. 
 
 Bradford ■;. Manly, 7 Am. Dec. 125; 13 
 
 Bostick V. Hardy, 30 Ga. 836. p. 292. 
 
 Mass. 138. p. 308. 
 
 Bostock V. Jardine, 8 Hurl. & Colt. 700. 
 
 Bradley v. Bosley, 1 Barb. Ch. 125. p. 
 
 p. 299. 
 
 311. 
 
 Boston Bank v. Hodges, 9 Pick. 420. p. 
 
 Bradley v. Lee, 38 Cal. 362. p. 390. 
 
 206. 
 
 Bradley v. The People, 56 Barb. 72. p. 
 
 Bosworth V. Bugden, 7 Modern, 459. p. 
 
 830. 
 
 463. 
 
 Bradley v. Salmon Palls Man. Co., 30 N. 
 
 Bosworth V. Home, 2 Stra. 1085. p. 463. 
 
 H. 487. p. 64. 
 
 Bottomley v. Forbes, 5 Bing. N. C. 121. 
 
 Bradley v. Wheeler, 4 Boot, 18; 44 N. Y. 
 
 pp. 409, 411. 
 
 500. pp. 45, 435. 
 
 Boughton V. Standish, 48 Vt. 594. p. 311. 
 
 Bradstreet «. Bank of Eoyalton, 48 Vt.. 
 
 Bourke v. Kneeland, 4 Mich. 336. p. 104. 
 
 128. p. 245. 
 
 Bow V. AUenstown, 34 N. H. 351. p. 463. 
 
 Bradstreet v. Heron, Abb. Adm. 209. p. 
 
 Bowdie ». Fennell, 1 Wils. 288. p. 463. 
 
 227. 
 
TABLE OP CASES CITED. 
 
 XXUl 
 
 Brady v. Oastler, 3 Hurl. & Colt. 112. p. 
 
 864. 
 Brady v. Todd, 9 C. B. (n. s.) 592. p. 
 
 284. 
 Brady v. Wilcoxson, 44 Cal. 239. p. 317. 
 Bragg V. Morrill, 49 Vt. 45. pp. 308, 
 
 309. 
 Brailsford v. Williams, 15 Md. 150. p. 
 
 81. 
 Branch v. Burnley, 1 Call, 147. p. 292. 
 Branch Bank v. Knox, 1 Ala. 148. p. 
 
 209. 
 Brandao v. Barnett, 12 CI. & Fin. 805. 
 
 p. 20. 
 Brantley v. Thomas, 22 Texas, 270. p. 
 
 308. 
 Brawley .;. United States, 96 U. S. 168. 
 
 p. 451. 
 Brehen v. O'Donnell, 34 N. J. L. 408. p. 
 
 315. 
 Bremner v. Hull, L, K. 1 C. P. 748; 12 
 
 Jur. (n. s.) 648. p. 63. 
 Brent ». Banl; Ot' the Metropolis, 1 Pet. 89. 
 
 pp. 205, 207. 
 Brent B. Bank of Washington, 10 Pet. 596. 
 
 p. 246. 
 Brent v. Cook, 12 B. Mon. 268. p. 37. 
 Brettel v. Williams, 4 Exch. 623. pp. 
 
 280, 281. 
 Brewer v. Tyringham, 12 Pick. 547. p. 
 
 317. 
 Bridgeport Bank v. Dyer, 19 Conn. 136. 
 
 p. 206. 
 Brigga v. Lawrence, 3 Term Eep. 454. 
 
 p. 365. 
 Bright V. Legerton, 2 De G. P. & J. 606. 
 
 p. 82. 
 Brind v. Dale, 8 Car. & P. 207. pp. 215, 
 
 221. 
 British Assur. Co. u. Brown, 12 C. B. 723. 
 
 p. 245. 
 Broadwell v. Broadwell, 6 HI. 599. p. 
 
 368. 
 Broadwell v. Butler, 6 McLean, 296. p. 
 
 408. 
 Bromley v. Elliott, 38 N. H. 287. p. 364. 
 Brooks V. Barrett, 7 Pick. 96. p. 88. 
 Brough V. Whitmore, 4 Term Eep. 206. 
 
 p. 403. 
 Brousseau v. The Hudson, 11 La. An. 427. 
 
 p. 222. 
 
 Brower «. Lewis, 19 Barb. 574. pp. 308, 
 
 309. 
 Brown v. Arnott, 6 Watts & S. 402. p. 
 
 286. 
 Brown v. Brooks, 25 Pa. St. 210. p. 377. 
 Brown u. Brown, 8 Mete. 573. p. 388. 
 Brown ». Carstairs, 3 Camp. 160. p. 253. 
 Brown v. Cornwell, 1 Boot, 60. p. 221. 
 Brown v. Crandall, 11 Conn. 92. p. 282. 
 Brown v. Edgington, 2 Man. & (i. 279. 
 
 p. 309. 
 Brown v. Earrar, 3 Ohio, 155. p. 453. 
 Brown v. Poster, 113 Mass. 136. p. 417. 
 Brown v. Harraden, 4 Term Eep. 148. p. 
 
 208. 
 Brown «. Harris, 2 Gray, 359. p. 237. 
 Brown v. Harrison, 17 Ala. 774. p. 294. 
 Brown v. Hitchcock, 28 Vt. 452. p. 323. 
 Brown v. Jackson, 2 Wash. C. Ct. 24. p. 
 
 466. 
 Brown v. Litton, 1 P. Wms. 140. p. 295. 
 Brown v. Lusk, 4 Yerg. 210. p. 208. 
 Brown v. Murphee, 31 Miss. 91. p. 309. 
 Brown v. McDonnell, 9 Upper Canada Q. 
 
 B. 312. p. 305. 
 Brown v. Tapscott, 6 Mee. & W. 119. 
 
 p. 283. 
 Browne v. Byrne, 3 El. & Bl. 703 ; 18 .Tur. 
 
 700. pp. 349, 350, 368, 369, 370, 410. 
 Browning v. Long Island E. Co., 2 Daly, 
 
 117. p. 72. 
 Bruin v. Knott, 12 Sim. 453. p. 17. 
 Brumby v. Smith, 3 Ala. 12S. p. 279. 
 Bryan v. Spurgin, 5 Sneed, 681. p. 435. 
 Biyant v. Commonwealth Ins. Co., 6 
 
 Pick. 131, 146. pp. 136, 238. 
 Bryant v. Kelton, 1 Texas, 434. p. 100. 
 Bryant v. Moore, 26 Me. 84. p. 286. 
 Bryant v. Poughkeepsie Mutual Ins. Co., 
 
 17 N. Y. 200. pp. 150, 260. 
 Bryce v. The Empress, 3 West. L. J. 174. 
 
 p. 104. 
 Bryden v. Taylor, 2 Har. & J. 396. p. 
 
 282. 
 Buchenau v. Horney, 12 HI. 336. p. 
 
 311. 
 Buckman v. Levi, 3 Camp. 414. pp. 215, 
 
 216, 217. 
 Buck V. Burk, 18 N. Y. 337. p. 378. 
 Buck V. Chesapeake Ins. Co., 1 Pet. 151. 
 
 p. 261. 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Buck V. Grimshaw, 1 Edw. Oh. 140. pp. 
 
 45, 314. 
 Buckbee v. United States Ins. Co., 18 
 
 Barb. 541. p. 266. 
 Buckland v. Conway, 16 Mass. 396. p. 
 
 289. 
 Buckle V. Knoop, L. B. 2 Exch. 125. pp. 
 
 45, 411. 
 Bucknam v. Chaplin, 1 Allen, 70. p. 
 
 286. 
 Buckner v. Heal Estate Bank, 5 Ark. 536. 
 
 p. 369. 
 Buford V. Tucker, 44 Ala. 89. p. 30. 
 Bulbroke v. Goodeve, 1 W. Black. 569. 
 . p. 17. 
 Bulkley v. Derby Fishing Co., 2 Conn. 
 
 252 ; 7 Am. Deo. 271. pp. 30, 145, 245. 
 Bull V. Sehuberth, 2 Md. 38. p. 283. 
 BuUard ». National Bank, 18 Wall. 589. 
 
 p. 247. 
 Bullet V. Bank of Pennsylvania, 2 Wash. 
 
 C. Ct. 172. p. 212. 
 Buncombe Turnpike Co. v. McCarson, 
 
 1 Dev. & B. 310. p. 244. 
 Burke «. Wolfe, 38 N. Y. S. C. (J. & S.) 
 
 263. p. 83. 
 Burleson v. Goodman, 32 Texas, 229. p. 
 
 82. 
 Burial Board v. Thompson, I/. E. 6 C. P. 
 
 457. p. 288. 
 Burr V. Byers, 10 Ark. 398. p. 82. 
 Burr V. Sickles, 17 Ark. 428. p. 41. 
 Burrt). Williams, 23 Ark. 244. p. 316. 
 Burrell v. North, 2 Car. & Kir. 681. pp. 
 
 215, 216, 217. 
 Burrill v. Phillips, 1 Gall. 360. p. 290. 
 Burrough v. Moss, 10 Barn. & Cress. 558. 
 
 p. 214. 
 Burroughs ». Langley, 10 Md. 248. p. 
 
 104. 
 Burro wes v. Caines, 2 Upper Canada Q. B. 
 
 288. p. 269. 
 Burtners v. Keran, 24 Gratt 42. p. 365. 
 Burton v. Blin, 23 Vt. 151. p. 297. 
 Burton v. Stewart, 3 Wend. 236. p. 812. 
 Busby V. North American Ins. Co., 40 
 
 Md. 572. p. 266. 
 Busch V. Pollack, 41 Mich. 64. p. 375. 
 Butler V. Basing, 2 Car. A P. 618. p. 215. 
 Butler V. City of Charlestown, 7 Gray. 12. 
 
 pp. 41, 464. 
 
 Butler V. Cornwall Iron Co., 22 Conn. 
 
 860. p. 83. 
 Butterworth v. Volkening, 4 N. Y, S. C. 
 
 (T. &C.)650. pp. 45, 46. 
 Button V. American Tract Society, 23 
 
 Vt. 849. p. 398. 
 Bywater v. Richardson, 1 Ad. & E. 508. 
 
 pp. 311, 848, 362. 
 
 Cabot V. Winsor, 1 Allen, 546. p. 451. 
 Cadwallader v. Kroesen, 22 Md. 200. p. 
 
 281. 
 Cadwallader v. West, 48 Mo. 483. p. 365. 
 Cadwell v. Meek, 17 111. 220. p. 33. 
 CaflFrey v. Darby, 6 Ves. 496. p. 284. 
 Caldecott v. Smythies, 7 Car. & P. 808. 
 
 pp. 97, 268. 
 Calder v. Dobell, L. E. 6 C. P. 486. p. 92. 
 Caldwell v. Caldwell, 1 J. J. Marsh. 53. 
 
 p. 311. 
 Caldwell v. Dawson, 4 Mete. (Ky.) 121. 
 
 p. 45. 
 Calisher v. Forbes, 41 L. J. (Ch.) 56. p. 
 
 96. 
 Cambridge o. Lexington, 17 Pick. 230. 
 
 p. 388. 
 Camden v. Cowley, 1 W. Black. 417. pp. 
 
 100, 257. 
 Camden v. Doremus, 3 How. 515. p. 107. 
 Camden, etc., Transp. Co. v. Belknap, 2 
 
 Wend. 355. pp. 136, 215, 220. 
 Cameron v. Blackman, 39 Mich. 108. 
 
 pp. 96, 277. 
 Cameron v. Merchants', etc., Bank, 37 
 
 Mich. 240. p. 462. 
 Campbell v. Campbell, 21 Mich. 438. p. 
 
 830. 
 Campbell v. Dent, 54 Mo. 325. p. 280. 
 Campbell v. Fleming, 1 Ad. & E. 40. p. 
 
 311. 
 Campbell v. Hastings, 29 Ark. 512. p. 
 
 282. 
 Campbell v. Insurance Co., 2 Whart. 64. 
 
 p. 294. 
 Canbain v. Pish, 1 Price P. C. 148. p. 
 
 831. 
 Canby v. Frick, 8 Md. 163. p. 108. 
 Canie v. Horsfall, 2 Car. & Kir. 349. p. 
 
 364. 
 Capel V. Thornton, 3 Car. & P. 352. p. 
 
 292. 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 Carey v. Bright, 58 Pa. St. 70. p. 888. 
 Carkin «. Savory, 14 Gray, 528. p. 452. 
 Carleton v. Brightwell, 2 P. Wms. 462. 
 
 p. 173. 
 Carlisle v. Wallace, 12 Ind. 252. pp. 80, 
 
 887. 
 Carlton v. Ludlow Woollen Mills, 27 Vt. 
 
 496. p. 282. 
 Carlton v. Sumner, 4 Pick. 546. p. 314. 
 ■Carlyon v. Hayward, 24 Sol. J. 807. p. 
 
 270. 
 Carnochan v. Gould, 1 Bailey, 179. p. 
 
 193. 
 Carpenter v. Providence Ins. Co., 16 Pet. 
 
 611. p. 103. 
 Can- V. Callaghan, 8 Litt. 372. pp. 74, 
 
 75. 
 Carr v. Jackson, 7 Exch. 382. p. 845. 
 Carson v. Blazer, 2 Binn. 475; 4 Am. 
 
 Dec. 463. pp. 112, 124. 127, 129, 473. 
 Carson u. Leathers, 11 Cent. L. J. 157. 
 
 p. 322. 
 Carson v. Marine Ins. Co., 2 Wash. C. Ct. 
 
 468. p. 257. 
 Carter «. Boehm, 3 Burr. 1905. p. 55. 
 Carter v. Crick, i Hurl. & N. 412. p. 308. 
 Carter v. Douglass, 2 Ala. 500. p. 282. 
 Carter v. Philadelphia Coal Co., 77 Pa. 
 
 St. 286. p. 53. 
 Carter v. Sanderson, 5 Bing. 79. p. 463. 
 Carvick v. Vickery, 2 Doug. 663. p. 99. 
 Casco Man. Co. u. Dixon, 3 Oush. 407. 
 
 p. 306. 
 Case V. Potter, 8 Johns. 211. p. 84. 
 Case of Corporations, 4 Coke, 77. p. 463. 
 Cash V. Hinkle, 36 Iowa, 623. p. 448. 
 Cass V. Boston, etc., R. Co., 14 Allen, 448. 
 
 p. 319. 
 Ca^sell V. Baekrack, 42 Miss. 56. p. 315. 
 Cassidy v. Stewart, 2 Man. & G. 437. pp. 
 
 26, 27. 
 Castle V. Playford, L. E. 7 Exch. 98. p. 
 
 315. 
 Castleman ». Southern Mutual Ins. Co., 
 
 14 Bush, 197. pp. 77, 445. 
 Caswell V. Boston, etc., B. Co., 98 Mass. 
 
 194. p. 322. 
 , Catesby's Case, 6 Coke, 62. p. 110. 
 Catley v. Wintringham, Peake N. P. 150. 
 
 pp. 140, 143. 
 Catlin V. Bell, 4 Camp. 183. p. 288. 
 
 . Catlin V. Smith, 24 Vt; 85. pp. 33, 300. 
 Catterallw. Hindle, L. B. 1 O. P. 189; 2 
 
 C. P. 368. pp. 292, 293. 
 Cay ton v. Hardy, 27 Mo. 536. p. 282. 
 Cayzer ». Taylor, 10 Gray, 410. p. 461. 
 Central Bank o. Davis, 19 Pick. 373. p. 
 
 208. 
 Central Bridge Co. v. City of Lowell, 15 
 
 Gray, 106. p. 294. 
 Central E. Co. v. Anderson, 58 Ga. 393. 
 
 p. 72. 
 Chamberlain v. McClurg, 8 Watts & S. 
 
 31. p. 365. 
 Chamberlain of London o. Compton, 7 
 
 Dow. & Ky. 601. p. 463. 
 Chambers v. George, 1 Litt. 335. p. 386. 
 Chambers v. Miller, 13 C. B. (n. s.) 125. 
 
 p. 315. 
 Chambersburg Ins. Co. v. Smith, 11 Pa. 
 
 St. 120. pp. 244, 246. 
 Chambovet v. Cagney, 35 N. T. S. 0. (J. 
 
 & S.) 486. p. 330. 
 Champion v. Gordon, 70 Pa. St. 476. p. 
 
 209. 
 Chandler v. Belden, 18 Johns. 157. pp. 
 
 241, 435. 
 Chandler v. Hogle, 58 HI. 46. p. 290. 
 Channel v. Fasset. 16 Ohio, 166. p. 283. 
 Chanter ». Hopkins, 4 Mee. & W. 399. 
 
 p. 309. 
 Chapman v. Devereux, 32 Vt.616. p. 23. 
 Chapman v. Lathrop, 6 Cow. 110. p. 
 : 314. 
 
 'Chappel V. Avery, 6 Conn. 34. p. 102. 
 Charlton v. Gibson, 1 Car. & Kir. 541. 
 
 p. 443. 
 Chase v. Alliance, etc., Ins. Co., 9 Allen, 
 
 311. p. 237. 
 Chase v. Barrett, 4 Paige, 148. p. 283. 
 ;Chase v. Washburn, 1 Ohio St. 252. p. 
 
 387. 
 Chastain v. Bowman, 1 Hill, 270. pp. 40, 
 
 193. 
 Chaurand v. Angerstein, Peake N. P. 61. 
 
 p. 403. 
 Chenery u. Goodrich, lOS Mass. 566. p. 
 
 100. 
 Chenowith ». Dickinson, 8 B. Mon. 156. 
 
 p. 323. 
 Chesapeake Bank v. Brown, 29 Md. 483. 
 ' p. 41. 
 
XXVI 
 
 TABLE or CASES CITED. 
 
 Chesapeake Bank v. Swain, 29 Md. 483. 
 
 p. 211. 
 Cheshire (The), 2 Sprague, 28. p. 222. 
 Chesterfield Man. Co. v. Dehon, 5 Pick. 7 ; 
 
 16 Am. Dec. 367. p. 293. 
 Chicago, etc., Ins. Co. u. Carpenter, 28 
 
 111. 360. p. 211. 
 Chicago Packing Co. v. Tilton, 87111. 548. 
 
 pp. 69, 104. 
 Chicago, etc., R. Co. v. The People, 56 111. 
 
 365. p. 460. 
 Chicago, etc., E. Co. v. Scott, 42 111. 132. 
 
 p. 225. 
 Chicester v. Walker, 3 Rich. L. 284. p. 
 
 270. 
 Chichester v. Oxenden, 3 Taun. 147. pp. 
 
 335, 337. 
 Chickering v. Fowler, 4 Pick. 371. pp. 
 
 135, 225. 
 Chicopee Bank v. Eager, 9 Mete. 584. p. 
 
 206. 
 Child V. Hudson Bay Co., 2 P. Wms. 207. 
 
 p. 246. 
 Child V. Moriey, 8 Term Eep. 610. p. 
 
 287. 
 Child V. Sun Mutual Ins. Co., 3 Sandf. 26. 
 
 pp. 33, 42, 403. 
 Chippendale, Ex parte, 4 De G. M. & G-. 
 
 19. p. 281. 
 Chouteau v. The Anthony, 16 Mo. 216 ; 
 
 20 Mo. 510. p. 109. 
 Christian v. Dripps, 28 Pa. St. 271. p. 
 
 272. 
 Christian v. St. Paul, etc., E. Co., 20 
 
 Minn. 21. p. 72. 
 Christy v. Cummins, 3 McLean, 386. p. 
 
 311. 
 Chubb V. Renaud, 16 L. E. (n. s.) 492. 
 
 p. 221. 
 Churton v. Ere wen, L. E. 2 Eq. 634. p. 
 
 331. 
 Cincinnati, etc., E. Co. v. Boal, 15 Ind. 
 
 345. pp. 34, 37, 215. 
 City Bank v. Cutter, 3 Pick. 414. pp. 205, 
 
 207. 
 City of Champaign v. Patterson, 50 111. 61. 
 
 p. 829. 
 (Mty (if Davenport u. Peoria Ins. Co., 17 
 
 Iowa, 276. p. 246. 
 City of London v. Vanacre, 12 Modern, 
 
 269. p. 64. 
 
 City of "Washington (The), 92 U. S. 31. 
 
 p. 324. 
 Citizens' Bank v. Grafflin, 31 Md. 507. 
 
 pp. 38, 40. 
 Citizens' Bank v. Nantucket Steamboat 
 
 Co., 2 Storj', 16. p. 214. 
 Citizens' Ins. Co. v. McLaughlin, 53 Pa. 
 
 St. 485. pp. 98, 260, 485. 
 Clamorgan v. Guisse, 1 Mo. 99. p. 449. 
 Clancarty v. Latouohe, 1 Ball & B. 420. 
 
 p. 318. 
 Clare v. Maynard, 7 Car. & P. 241. p. 
 
 306. 
 Clark V. Anderson, 10 Bush, 91. p. 294. 
 Clark V. Baker, 5 Meto. 452. pp. 812, 313. 
 Clark V. Baker, 11 Mete. 188. pp. 24, 41. 
 Clark V. Barnwell, 12 How. 272. p. 222. 
 Clark V. Cox, 32 Mich. 204. p. 104 
 Clark V. Le Cren, 9 Barn. & Cress. 52. 
 
 p. 463. 
 Clark V. Denton, 1 Barn. & Adol. 92. p. 
 
 463. 
 Clark V. Faxton, 21 Wend. 152. pp. 136, 
 
 137. 
 Clark V. Gifford, 7 La. 524. pp. 30, 71. 
 Clark V. Harvey, 54 Pa. St. 142. p. 269. 
 Clark V. Manufacturers' Ins. Co., 2 
 
 Woodb. & M. 472. p. 262. 
 Clark V. Eoystone, 13 Mee. & W. 752. 
 
 pp. 272, 362. 
 Clark V. Smallfield, 4 L. T. (n. s.) 405. 
 
 p. 381. 
 Clark V. Tucker, 3 Lev. 282. p. 463. 
 Clark o. United, etc., Ins. Co., 7 Mass. 
 
 395. p. 167. 
 Clark ». Van Northwick, 1 Pick. 343. p. 
 
 299. 
 Clarke v. Dederick, 31 Md. 148. p. 214. 
 Clarke v. Dickson, El. Bl. & El. 148. p. 
 
 311. 
 Clarke National Bank v. Bank of Albion, 
 
 52 Barb. 592. p. 205. 
 Clnrkson v. Woodhouse, 5 Term Eep. 
 
 412 ; 3 Doug. 189. p. 17. 
 Clason V. Simmonds, 6 Term Eep. 533. 
 
 p. 254. 
 Clay V. Turner, 3 Bibb, 52. p. 311. 
 Clayton v. Corby, 5 Q. B. 415. pp. 32, 
 
 63. 
 Clayton v. Gregson, 6 Ad. & B. 302. pp. 
 
 111,390. 
 
TABLE OF CASES CITED. 
 
 xxvu 
 
 Clayton v. Lord Nugent, l3 Mee. & W. 
 
 200. " pp. 102, 399. 
 Clem V. Martin, 34 Ind. 341. p. 267. 
 Clemens v. Patton, 9 Port. 289. p. 82. 
 Clement (The), 2 Curt. 363. p. 324. 
 Clifton V. Walmealey, 5 Term Eep. 564. 
 
 p. 364. 
 Clinan v. Cooie, 1 Soh. & Lef. 22. p. 273. 
 Cliquot's Champagne, 3 Wall. 114. p. 
 
 305. 
 Close V. Fields, 9 Texas, 422. pp. 315, 
 
 316. 
 Clyde V. Qxavet, 54 Pa. St. 251. p. 242. 
 Coates V. Lewes, 1 Camp. 444. p. 292. 
 Cobb V. Davenport, 3 Vroom, 369. p. 
 
 331. 
 Cobb !). Lime Eock, etc., Ins. Co., 58 Me. 
 
 326. pp. 56, 404. 
 Cobban v. Downe, 5 Esp. 41. p. 216. 
 Cochran v. Eetberg, 3 Esp. 121. pp. 368, 
 
 408. 
 Cockburn v. Alexahder, 6 C. B. 791. p. 
 
 379. 
 Cocke V. Bailey, 42 Miss. 81. p. 364. 
 Cockell V. Gray, 3 Brod. & B. 187. p. 
 
 111. 
 Cocker v. Guy, 2 Bos. & Pul. 565. p. 
 
 364. 
 Cockran v, Irlam, 2 Man. & Sel. 301. pp. 
 
 . 288, 290. 
 Cockrill V. Kirkpatrick, 9 Mo. 697.- p. 
 
 386. 
 Cocksedge.w.:Fanshaw, 1 Doug. 119. pp. 
 
 64, 66. 
 Codd V. BrowQ, 15 L. T. (ir. s.) 536. p. 
 
 78. 
 Codman v. Armstrong, 28 Me. 91. pp. 
 
 104, 303. 
 Codman v. Evans, 5 Allen, 378. p. 331. 
 Coffin V. Newburyport Ins. Co., 9 Mass. 
 
 436. p. 257. 
 Coffman v. Campbell, 87 111. 98. p. 40. 
 Coggs V. Bernard, 2 Ld. Eaym. 918, p. 
 
 136. 
 Cohea v. Hunt, 2 Smed. & M. 227. pp. 
 
 98, 206. , 
 Cohen v. Frost, 2 Duer, 335. p. 221. 
 Cohen v. Paget, 4 Camp. 96. p. 293. 
 Coil «. WiJUis, 18 Ohio, 28. p. 315. 
 Coit ». Qoronaerciallns. Co., 7 Johns. 885. 
 
 pp.'l43, 401. 
 
 Colchester v. Goodwin, Cart. 117. p. 
 
 463. 
 Colcock V. Louisville, etc., B. Co., 1 
 
 Strobh. 329. p. 109. 
 Cole V. Goodwin, 19 Wend. 251. pp. 135, 
 
 136, 137, 140, 221. 
 Cole V. Kerr, 20 Vt. 21. p. 316. 
 Cole 0. Wade, 16 Ves. 27. p. 288. 
 Cole V. Wendell, 8 Johns. 116. p. 378. 
 Coleman v. Chadwiek, 80 Pa. St. .81. p, 
 
 77. 
 Coleman «. McMurdo, 5 Eand. > 51. p. 
 
 453. 
 Colepepper v. Good, 5 Car. & P. 380. pp. 
 
 143, 215. 
 
 Coles V. Bristowe, L. E. 4 Ch. 3. p. 288. 
 Coles V. Treoothick, 9 Ves. 250. p. 289. 
 Colket V. Ellis, 10 Phila. 376. p. 286. 
 Collender v. Dinsmore, 55 N. Y. 200. p. 
 . 435. 
 CoUings V. Hope, 3 Wash. C. Ct. 149. 
 
 pp. 33, 36, 291. 
 Collins V. Blantern, 2 Wils. 341. p. 365. 
 Collins V. Driscoll, 34 Conn. 43. p. S 
 Collins V. New England Iron Co., 115 
 
 Mass. 23. p. 54. . 
 Collyer v. Collins, 17 Abb. Pr. 467. pp. 
 
 101, 397. 
 Collyer v. Stennett, 5 Scott N. E. 34. p, 
 
 17., 
 Colman v. Clements, 23 Cal. 245. pp. 
 
 112, 390. 
 Colonel Ledyard (The), 1 Sprague, 530. 
 
 p. 222. 
 Colt V. Noble, 5 Mass. 167. p. 209. 
 Colton V. Smith, Cowp. 47. p. 65. 
 Columbian Ins. Co. v, Catlett, 12 Wheat. 
 
 386, 387. p. 166. 
 Columbus Ins. Co. v. Lawrence, 2 Pet. 49. 
 
 p. 291. 
 Comfort V. Duncan, 1 Miles, 229. p. 269. 
 Commercial Bank v. Benedict, 18 B. Mon. 
 
 307. p. 212. 
 Commercial Bank u. Cunningham, 24 
 
 Pick. 276. p. 143. 
 Commercial, etc., Bank v. First National 
 
 Bank, 30 Md. IL p. 211. 
 Commercial, etc.. Bank v.Hamer, 7 How. 
 
 (Miss.) 448. p. 206. 
 Commercial Bank v. Kortwrightt 22 
 
 Wend. 348. p. 248. 
 
xxvm 
 
 TABLE OF CASES CITED. 
 
 Commercial Bank v. Newport Man. Co., 
 
 1 B. Mon. 14. p. 244. 
 Commercial Bank v. Norton, 1 Hill, 601. 
 
 p. 289. 
 Commercial Bank v. Union Bank, 19 
 
 Barb. 392. p. 103. 
 Commercial Bank v. Union Bank, 11 N. 
 
 Y. 203. p. 210. 
 Commercial Bank v. Vamum, 3 Lans. 90. 
 
 p. 455. 
 Commercial, etc., Ins. Co. v. Union, etc., 
 
 Ins. Co., 19 How. 318. p. 82. 
 Commercial Steamship Co. u. Boulton, 
 
 L. K. 10 Q. B. 346. p. 408. 
 Commonwealth (The) v. Blaisdell, 107 
 
 Mass. 234. p. 331. 
 Commonwealth (The) v. Hide and 
 
 Leather Ins. Co., 112 Mass. 136. p. 
 
 260. 
 Commonwealth (The) v. Mayloy, 57 Pa. 
 
 St. 291. p. 40. 
 Commonwealth (The) v. Ohio, etc., E. 
 
 Co., 1 Grant Cas. 329. p. 51. 
 Comstock V. Smith, 20 Mich. 338. p. 317. 
 Conklin «. Barton, 43 Barb. 435. p. 284. 
 Connecticut, etc., E. Co., v. Baxter, 32 
 
 Vt. 805. p. 408. 
 Conner v. Eobinson, 2 Hill (S. C), 354. 
 
 p. 190. 
 Connor v. Henderson, 15 Mass. 319. p. 
 
 311. 
 Conover v. Wardell, 20 N. J. Eq. 266. 
 
 p. 364. 
 Conro V. Port Henry Iron Co., 12 Barb. 
 
 33. p. 244. 
 Consequa v. Fanning, 3 Johns. Ch. 587. 
 
 p. 317. 
 Consequa v. Willings, 1 Pet. C. Ct. 225. 
 
 p. 129. 
 Consolidation Coal Co. v. Shannon, 34 
 
 Md. 144. p. 227. 
 Constable ». Nicholson, 14 0. B. (n. s.) 
 
 280. p. 331. 
 Converse v. Norwich, etc., Transp. Co., 33 
 
 Conn. 166. pp. 216, 217. 
 Conway, Ex parte, 4 Ark. 302, 367. p.369. 
 Coolidget). Brigham, 1 Mete. 547. p. 311. 
 Coolidge V. Learned, 8 Pick. 604. p. 28. 
 Cooper V. Barber, 3 Taun. 99. p. 331. 
 Cooper ». Berry, 21 Ga. 526. pp. 30, 242. 
 Cooper ti. Kane, 19 Wend. 886. p. 339. 
 
 Cooper V. Purvis, 1 Jones L. 141. pp. 78 
 
 471. 
 Cooper I). Smith, 15 East, 103. p. 378. 
 Cook V. Champlain Transp. Co., 1 Denio, 
 
 92. p. 319. 
 Cook V. Darling, 2 E. I. 385. p. 208. 
 Cooke V. England, 27 Md. 14. p. 435. 
 Cooke V. Fiske, 12 Gray, 491. p. 43. 
 Cooke V. State National Bank, 62 N. Y. 
 
 96 ; 50 Barb. 339. p. 206. 
 Cookendorfer v, Preston, 4 How. 31-7. 
 
 pp. 20, 81. 
 Cope V. Cordova, 1 Eawle, 203. p. 224. 
 Cope ». Dodd, 13 Pa. St. 33. pp. 40, 237. 
 Cope] and v. Mercantile Ins. Co., 6 Pick. 
 
 198. p. 296. 
 Corbet v. Underwood, 83 111. 324. pp. 
 
 286, 435. 
 Corbin ■,. Sistrunk; 19 Ala. 203. p. 365. 
 Corbittu. Bank of Smyrna, 2Harr. (Del.} 
 
 235. p. 210. 
 Cormack v. Gladstone, 11 East, 347. p. 
 
 254. 
 Corning v. Ashley, 4 Denio, 354. p. 84. 
 Correa v. Frietas, 42 Cal. 341. p. 390. 
 Cort V. Birkbeck, 1 Doug. 218. p. 17. 
 Cortelyou v. Van Brandt, 2 Johns. 357. 
 
 p. 387. 
 Corwin v. Patch, 4 Cal. 204. p. 451. 
 Costigan v. Hawkins, 22 Wis. 74. p. 311. 
 Coueh V. Watson Coal Co., 46 Iowa, 17. 
 
 p. 43. 
 Coventry v. Gladstone, L. E. -1 Eq. 491. 
 
 p. 40. 
 Cowell V. Simpson, 16 Ves. 275. p. 241. 
 Cox V. Charleston, etc., Ins. Co., 3 Eich. 
 
 L. 331. pp. 68, 257, 258. 
 Cox V. Hickman, 8 H. L. Cas. 268. p» 
 
 279. 
 Cox V. O'Eiley, 4 Ind. 36*. pp. 22, 100. 
 Cox«. Peterson, 30 Ala. 008. p. 436. 
 Coxe V. Heisley, 19 Pi.. Hi. 243. pp. 242, 
 
 307, 430. 
 Coyle V. GoEzler, 2 Cranch 0. Ct 625. 
 
 pp. 81, 112. 
 Cozzins 1). Whittaker, 3 Stew. &. P. 322. 
 
 p. 306. 
 Cragin v. Carleton, 21 Me. 498. p. 284. 
 Craig V. Dale, 1 Watts & S. 509. p. 269. 
 Cram v. Bangor House Proprietuy, 12 
 
 Me. 851. p. 246. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 Crane v. Pratt, 12 Gray, 348. p. 816. 
 Cranwell v. The Fanny Posdick, 15 La. 
 
 An. 436. pp. 222, 242. 
 Crawford v. Clark, 15 111. 561. pp. 33, 
 
 225. 
 Crawford v. Hunter, 8 Term Kep. 18. p. 
 
 291. 
 Crawshay v. Homfray, 4 Barn. & Aid. 60. 
 
 p. 242. 
 Crocker v. People's Mutual Ins. Co., 8 
 
 Cush. 79. p. 406. 
 Crocker ». Schureman, 7 Mo. App. 358. 
 
 pp. 329, 455. 
 Crofts V. Marshall, 7 Car. & P. 597. p. 
 
 439. 
 Crosbie v. McDoual, 13 Ves. 138. p. 291. 
 Crosby v. Pitch, 12 Conn. 410. pp. 136, 
 
 143, 254. 
 Crosby v. Hetherington, 5 Scott N. B. 
 
 637. p. 17. 
 Crosby v. Mason, 32 Conn. 432. pp. 317, 
 
 818. 
 Crosby v. Wyatt, 23 Me. 156. p. 386. 
 Cross V. Beard, 26 N. Y. 85. p. 227. 
 Cross V. Eglin, 2 Barn. & Adol. 106. pp. 
 
 337, 451. 
 Cross V. Haskins, 13 Vt. 536. p. 292. 
 Cross V. Smith, 1 Mau. & Sel. 555. p. 
 
 143. 
 Crouch V. Credit Poncier, L. E. 8 Q. B. 
 
 374. pp. 103, 214. 
 Croucher v. Wilder, 98 Mass. 322. p. 
 
 227. 
 Crowell V. Western Keserve Bank, 3 Ohio 
 
 St. 403. p. 284. 
 Crupper v. Cook, L. E. 3 C. P. 194. p. 
 
 298. 
 Cuck V. Quackehbush, 13 Hun, 107. p. 
 
 330. 
 Culling T7. Tuffnall, Biill. N. P. 84. p. 
 
 271. 
 Camming v. Shand, 5 Hurl. & N. 95. pp. 
 
 38, 40. 
 Cunningham ». Fonblanque, 6 Car. & P. 
 
 44. pp.100, 276. 
 Cunningham v. Morrill, 10 Johns. 203. 
 
 p. 279. 
 Curiflb V. Crawford, 4 Serg. & E. 8. p. 
 
 &1. 
 Carrie V. Smith, 4 N. Y. Leg. Obs. 848. 
 
 p. 46. 
 
 Currier v. Boston, etc., E. Co., 34 N. H. 
 
 498. p. 394. 
 Gushing v. Smith, 43 Texas,'261. p. 284. 
 Cuthbert v. Gumming, 10 Exch. 809; 11 
 
 Exoh. 405. pp. Ill, 410. 
 Gutter V. Powell, 2 Smith's Ld. Gas. 21 ; 
 
 6 Term Eep. 320. pp. 120, 180, 278, 
 
 279. 
 
 Da Costa v. Edmunds, 4 Camp. 141. p. 
 
 221. 
 Dalby v. Hirst, 8 J. B. Moo. 566 ; 1 Brod. 
 
 & B. 224. p. 269. 
 Dalton V. Daniels, 2 Hilt. 472. p. 304. 
 Dana v. Brown, 1 J. J. Marsh. 304. p. 
 
 246. 
 Dana v. Fiedler, 1 E. D. Smith, 463. p. 
 
 375. 
 Dana v. Fiedler, 12 N. Y. 41. p. 378. 
 Danforth v. Schoharie, etc., Turnpike 
 
 Eoad Co., 12 Johns. 227. pp. 146, 244. 
 Daniels v. Hudson Eiver, etc., Ins. Co., 
 
 12 Gush. 416. pp. 258, 405. 
 Daniels o. Kyle, 1 Kelley (Ga.), 304. p. 
 
 208. 
 Daniels v. Pond, 21 Pick. 367. p. 267. 
 Darling v. Stanwood, 14 Allen, 504. p. 
 
 289. 
 Daubigny ». Duval, 5 Term Eep. 604. 
 
 p. 290. 
 Daun V. City of London Brewery Co., 
 
 L. E. 8 Eq. 155. pp. 86, 56, 458, 473. 
 Davidson v. Mosorop, 2 East, 56. p. 17. 
 Davis V. Adams, 18 Ala. 264. p. 315. 
 Davis V. Galloupe, 111 Mass. 121. p. 442. 
 Davis V. Hanly, 12 Ark. 645. p. 96. 
 Davis V. Jones, 2 Barn. & Aid. 166. p. 
 
 271. 
 Davis V. Miller, 14 Gratt. 1. p. 214. 
 Davis V. Moody, 15 Ga. 175. p. 364. 
 Davis V. Morgan, 1 Cromp. & J. 587. p. 
 
 463. 
 Davis V. Eiohardson, 45 Miss. 499. p. 
 
 280. 
 Davis V. Shaw, 42 Md. 410. p. 364. 
 Davis V. Waddington, 7 Man. & G. 42. 
 
 p. 463. 
 Davison v. Powell, 16 How. Pr. 467. p. 
 
 83. 
 Dawes v. North Eiver Ins. Co., 7 Cow. 
 
 462. p. 245, 
 
XXX 
 
 TABLK OP CASES CITED. 
 
 Dawson v. Kittle, 4 Hill, 107. pp. 45, 
 
 105, 387. 
 Day V. Holmes, 103 Mass. 306. pp. 284, 
 
 297. 
 Diiy V. Loekwood, 24 Conn. 186. p. 317. 
 Day V. llaguet, 14 Minn. 273. p. 308. 
 Daylight-Burner Gas Co. v. Odlin, 51 N. 
 
 H. 56. p. 284. 
 Dean v. Mason, 4 Conn. 428. p. 306. 
 Dean v. Swoop, 2 Binn. 72. pp. 101, 126. 
 Dean of Ely v. Warren, 2 Atk. 189. pp. 
 
 32, 65. 
 Dean of Femes (Case of the), Davies, 121. 
 
 p. 243. 
 Deblois v. Ocean Ins. Co., 16 Pick. 303. 
 
 p. 254. 
 Deckell v. Howell, 42 Cal. 636. p. 280. 
 De Forest v. Fulton Fire Ins. Co., 1 Hall, 
 
 114. pp. 74, 291. 
 De Hertel v. Supple, 14 Upper Canada 
 
 Ch. 421; 13 Upper Canada C*. 648. 
 
 pp. 40, 53. 
 Delaney v. Stoddart, 1 Term Eep. 22. 
 
 p. 2-54. 
 Delaplane v. Crenshaw, 15 Gratt. 457. 
 
 pp. 23, 28, 74, 456. 
 Delaplane v. Hoxall, 15 Gratt. 459. p. 
 
 455. 
 Delonguemare u. Tradesmen's Ins. Co., 
 
 2 Hall, 589. p. 260. 
 Demi i;. Bossier, 1 Penn. 224. p. 269. 
 De Mott V. Laraway, 14 Wend. 226. p. 
 
 136. 
 Denn v. Spray, 1 Term Kep. 466. pp. 17, 
 
 108. 
 Denson v. Stewart, 15 La. An. 456. p. 
 
 294. 
 Denston v. Perkins, 2 Pick. 86. p. 311. 
 Dent V. North American Steamship Co., 
 
 49 N. T. 390. p. 369. 
 Desha u. Holland, 12 Ala. 513. pp. 63, 
 
 305. 
 Deahler v. Beers, 32 111. 868. p. 305. 
 De Silvale v. Kendall, 4 Mau. & Sel. 37. 
 
 p. 237. 
 De Tastet v. Crousillat, 2 Wash. C. Ct. 
 
 182. p. 291. 
 Detouohes v. Peck, 9 Johns. 210. p. 
 
 237. 
 Detroit Advertiser, etc., Co. ». City of 
 
 Detroit (Sup. Ct. Mich.), p. 443. 
 
 Detroit, etc., R. Co. u. Van Steinburg, 17 
 
 Mich. 99. p. 41. 
 De Wolf V. Johnson, 10 Wheat. 828. p. 
 
 111. 
 Diamond v. Harris, 38 Texas, 634. p. 
 
 214. 
 Dickens v. Jones, 6 Terg. 483. p. 468. 
 Dickerson v. Seelye, 12 Barb. 99. p. 408. 
 Dickinson v. City of Poughkeepsie, 75 N. 
 
 Y. 66. p. 104. 
 Dickinson ». Gay, 7 Allen, 32. pp. 26, 
 
 308, 369, 419, 428, 484, 485. 
 Dickinson v. Lilwall, 4 Camp. 279. p. 
 
 286. 
 Dickinson v. Valpy, 10 Barn & Cress. 128. 
 
 pp. 281, 284. 
 Dickson v. Water Commissioners, 2 Hun, 
 
 615. p. 393. 
 Dietrich t>. Pennsylvania R. Co., 71 Pa. 
 
 St. 432. p. 50. 
 Dike V. Pool, 15 Minn. 315. p. 108. 
 Dill i). Camp, 22 Ala. 249. p. 311. 
 Dillingham 17. Snow, 7 Mass. 547. p. 468. 
 Dingle v. Hare, 7 C. B. (k. s.) 14-5. p. 
 
 286. 
 Dinsmore o. Nashville, etc., E. Co., 10 
 
 Cent. L. J. 468. p. 232. 
 Diplock «. Blackburn, 3 Camp. 43. pp. 
 
 294, 295, 479, 485. 
 Dixon V. Dunham, 14 HI. 324. pp. 44, 63, 
 
 72, 224, 226, 434. 
 Doane v. Dunham, 79 111. 131. p. 313. 
 Doane v. Russell, 3 Gray, 382. p. 238. 
 Dobson V. Sotheby, 1 Moo. & M. 90. p. 
 
 262. 
 Dodd V. Farlow, 11 Allen, 426. pp. 76, 
 
 307, 428, 482, 484. 
 Dodge V. Bartol, 5 Greenl. 286. p. 221. 
 Dodge V. Favor, 15 Gray, 82. pp. 45, 103, 
 
 278. 
 Doe V. Allen, 12 Ad. & E. 451. p. 398. 
 Doe u. Benson, 4 Barn. & Aid. 588. p. 
 
 270. 
 Doe V. Beviss, 18 L. J. (0. P.) 628. p. 866. 
 Doe V. Bold, 11 Q. B. 129. p. 244. 
 Doe V. Hiscoclcs, 5 Mee. & W. 863. p. 
 
 364. 
 Doe 1). Lea, 11 East; 312. p. 270. 
 Doe V. Robinson, 3 Bing. N. C. 677. p. 
 
 288. 
 Doe 1). Snowden, W. Black. 1225. p. 174. 
 
TABLE OP CASE 3 CITED. 
 
 XXXI 
 
 Doe V. Staixon, 1 Mee. & "W. 695. p. 870. 
 Doe V. Stillwell, 8 Ad. & B. 646. p. 270. 
 Doe V. Turford, 8 Bam. & Adol. 890. p. 
 
 82. 
 Domingo t>. Merchants' Ins. Co., 19 La. 
 
 An. 481. p. 324. 
 Donnell v. Columbian Ins. Co., 2 Sumn. 
 
 367. pp. 21, 36. 
 Donley v. Bush, 44 Texas, 1. p. 364. 
 Dorchester, etc., Bank o. New England 
 
 Bank, 1 Gush. 177. pp. 53, 58, 289. 
 Dorsey v. Eagle, 7 Gill & J. 381. p. 269. 
 DoTsey e. Phillips, etc.. Construction Co., 
 
 42 "Wis. 683. p. 327. 
 Doughty V. Page, 48 Iowa, 483. p. 303. 
 Dow V. Whetton, 8 Wend. 160. pp. 256, 
 
 403. 
 Downs V. Sprague, 1 Abb. App. Dec. 660. 
 
 p. 375. 
 Doyle V. Lasher, 16 Upper Canada C. P. 
 
 263. p. 816. 
 Driscoll V. West Bradley K. Co., 59 N. Y. 
 
 96. p. 246. 
 Drummond ». Attorney-General, 2 H. L. 
 
 Cas.837. p. 36fe. 
 Duberley v. Paige, 2 Term Rep. 391. p. 
 
 32. 
 Dubois o. Delaware, etc., B. Co., 12 Wend. 
 
 334; 15 Wend. 87. p. 393. 
 Duff ». Budd, 6 J. B. Moo. 469. p. 136. 
 Duff 17. Budd, 3 Brod. & B. 177. p. 225. 
 Dugard v. Edwards, 50 Barb. 289. p. 45. 
 Duke of Beaufort v. Neeld, 12 CI. & Fin. 
 
 290. p. 286, 
 Doyle V. St. James' Church, 7 Wend. 178. 
 
 p. 317. 
 Drake v. Goree, 22 Ala. 409. p. 279. 
 Drake v. Hudson, 7 Har. & J. 399. p. 
 
 102. 
 Drake v. Bainey, 3 Rich. L. 37. p. 283. 
 Drake v. Wigles worth, Willes, 654. p. 
 
 66. 
 Drennan ». House, 41 Pa. St. 30. p. 284. 
 Dresser v. Norwood, 17 C. B. (w. s.) 466. 
 
 p. 292. 
 Drew V. The Chesapeake, 2 Doug. 38. p. 
 
 324. 
 Duke of Beaufort v. Smith, 4 Ezch. 460. 
 
 p. 26. 
 Duke of St. Albans v. Shore, 1 H. Black. 
 
 274. p. 270. 
 
 Dumont ». Kellogg, 29 Mich. 420. p. 
 
 883. 
 Duncan v. Berlin, 46 N. Y. 685. p. 468. 
 Duncan v. Green, 48 Iowa, 878. 462. 
 Duncan v. Hill, L. R 6 Exch. 266; L. R. 
 
 8 Bxoh. 242. p. 288. 
 Duncan v. Lowndes, 3 Camp. 478. p. 280. 
 Dunham v. Dey, 18 Johns. 40. p. 458. 
 Dunham v. Gould, 16 Johns. 367. p. 458. 
 Dundee Harbor Trustees v. Dougall, 1 Sc. 
 
 App. Cas. 20. p. 463. 
 Dunn V. Rector of St. Andrew's Church, 
 
 14 Johns. 118. p. 244. 
 Dunseth v. Wade, 3 Dl. 285. p. 229. 
 Durham v. Musselman, 2 Blackf. 96 ; 16 
 
 Am. Dec. 188. p. 332. 
 Dutch V. Harrison, 87 N. Y. S. C. (T. & 
 
 C.)306. p. 435. 
 Dutch Plat Water Co. v. Mooney, 12 Cal. 
 
 534. pp. 112, 390. 
 Dutchess Cotton Man. Co. v. Davis, 14 
 
 Johns. 288. p. 463. 
 Dutton V. Wilner, 52 N. Y. 818. p. 294. 
 Dutton V. Woodman, 9 Cush. 255. p. 
 
 284. 
 Duvall V. Bank, 1 Gill & J. 31 ; 9 Gill & 
 
 J. 81. p. 40. 
 D wight 1). Brewster, 1 Pick. 50; 11 Am. 
 
 Dec. 183. pp. 144, 214, 215, 290. 
 Dwighti). Mayor of Boston, 12 Allen, 316. 
 
 p. 456. 
 Dyce V. Hay, 1 Macq. H. L. Cas. 305. p. 
 
 381. 
 Dyer v. Sutherland, 76 HI. 580. p. 293. 
 Dykers v. Allen, 7 Hill, 497. pp. 22, 
 
 445. 
 
 Eagle V. White, 6 Whart. 506. p. 225. 
 Eagle Bank v. Chapin, 8 Pick. 180. p. 
 
 209. 
 Eager v. Atlas Ins. Co., 14 Pick. 141. pp. 
 
 96, 136, 143, 256, 465. 
 Earl of Buckinghamshire v. Drury, 2: 
 
 Eden, 74. .p. 462. 
 Earl of Falmouth v. Thomas, 1 Cromp. &. 
 
 M. 89. p. 267. 
 Earl of Manchester v. Vale, 1 Saund. 28.. 
 
 p. 32. 
 Early v. Garrett, 9 Barn. & Cress. 928> 
 
 p. 306. 
 Early v. Reed, 6 Hill, 12. p. 286. 
 
XXXll 
 
 TABLE OF CASES CITED. 
 
 Bastcourt «. Weekes, 1 Lutw. 799. p. 
 
 172. 
 East India Oo. v. Henchman, 1 Ves. jr. 
 
 289. p. 294. 
 East India Co. v. PuUen, 2 Stra. 690. p. 
 
 221. 
 East London Water-Works v. Bailey, 4 
 
 Bing. 283. p. 244. 
 Eastman v. Clark, 53 N. H. 276. p. 280. 
 Eastman v. Coos Bank, 1 N. H. 26. p. 
 
 244. 
 Easton v. Clark, 35 N. Y. 232. p. 286. 
 East Kiver National Bank v. Gove, 67 ST. 
 
 Y. 597. p. 206. 
 Eaton V. Smith, 20 Pick. 150. p. 368. 
 Ecker v. Moore, 2 Chand. 85. p. 103. 
 Eddowes v. Hopkins, Doug. 361. p. 317. 
 Eddy V. Faulkner, 3 Yeates, 580. p. 333. 
 Eddy (Tlie), 5 Wall. 481. p. 242. 
 Edgerly v. Emerson, 23 N. H. 566. p. 
 
 245. 
 Edie V. East India Co., 1 W. Black. 295; 
 
 2 Burr. 1216. pp. 20, 100, 192. 
 Edmonson v. Thompson, 2 Post. & Pin. 
 
 564. p. 284. 
 Edwards v. Goldsmith, 16 Pa. St. 48. p. 
 
 293. 
 Edwards v. Grand Junction Canal Co., 1 
 
 Myl. & Cr. 659. p. 244. 
 Effinger v. Henderson, 33 Miss, 449. p. 
 
 318. 
 Eggleston v. Boardman, 37 Mich. 14. p. 
 
 303. 
 Eioke V. Meyer, 3 Camp. 412. p. 293. 
 Eldridge v. Smith, 13 Allen, 140. p. 278. 
 Eliason u. Henshaw, 4 Wheat. 225. ■ p. 
 
 862. 
 Elliot r^. Wilson, 4 Bro. P. C. 470. p. 
 
 254. 
 Elliot V. Rossell, 10 Johns. 9; 6 Am. 
 
 Dec. 306. pp. 126, 129, 136. 
 .Ellis V. Ohio Life Ins. Co., 4 Ohio St. 628. 
 
 pp. 23, 211. 
 Ely V. Hanford, 65 BX. 267. p. 294. 
 Ely V. New Haven Steam'boat Co., 63 
 
 Barb. 207. pp. 108, 226, 280. 
 Emanuel v. Draughn, 14 Ala. 303. p. 288. 
 Emerson v. Providence Hat Co., 12 Mass. 
 
 241. p. 288. 
 Emery o. Dunbar, 1 Daly, 408. pp. 71, 
 
 237, 477, 486. 
 
 Emery v. Gerbier, 2 Wash. C. Ct. 413. p. 
 
 290.' 
 Emery n. Hersey, 4 Greenl. 407. p. 215. 
 Emmons v. Lord, 18 Me. 851. p. 279. 
 English V. Johnson, 17 Cal. 107. pp. 103, 
 
 890. 
 Ensworth v. New York, etc., Ins. Co., 7 
 
 Am. L. Reg. 832. p. 297. 
 Erben v. Lorillard, 2 Keyes, 667. p. 294. 
 Brie R. Co. «. Ackerson, 33 N. J. L. 34. 
 
 p. 318. 
 Erie, etc., Transp. Co. v. Dater, 8 Cent. L. 
 
 J. 293. p. 242. 
 Erwin v. Clark, 13 Mich. 10. p. 435. 
 Erwin V. Saunders, 1 Cow. 249. p. 364. 
 Esterly v. Cole, 3 N. Y. 502. pp. 52, 198, 
 
 317. 
 Etheridge v. Binney, 9 Pick. 272. p. 282. 
 Eureka Ins. Co. v. Robinson, 56 Pa. St. 
 
 256. p. 79. 
 Evans v. Bidwell, 20 Conn. 209. p. 831. 
 Evans v. Commercial Ins. Co., 6 R. I. 47. 
 
 pp. 103, 402. 
 Evans v. Pitchburg, etc., B. Co., Ill Mass. 
 
 142. p. 221. 
 Evans v. Hesler, 1 Bibb, 561. p. 332. 
 Evans v. Myers, 25 Pa. St. 114. p. 454. 
 Evans v. Ogilvie, 2 You. & J. 79. p. 105. 
 Evans v. Potter, 2 Gall. 13. p. 290. 
 Evans v. Pratt, 3 Man. & G. 759 ; 4 Scott 
 
 N. R. 378. p. 389. 
 Evans v. Wain, 71 Pa. St. 69. pp. 293, 
 
 377. • 
 Evansville National Bank v. Metropolitan 
 
 Bank, 2 Biss. 627. p. 247. 
 Evansville, etc., B. Co. v. Young, 28 Ind. 
 
 516. p. 242. 
 Eveleth v. Wilson, 15 Me. 109. p. 364. 
 Everett v. United States, 6 Port. 182. p. 
 
 244. 
 Everhartw. Searle, 71 Pa. St. 256. p. 294. 
 Ewing V. Beaiichamp, 4 Bibb, 496. p. 
 
 278. 
 Exchange Bank v. Coleman, 1 W. Va. 69. 
 
 p. 435. 
 Express Co. ». Kountze, 8 Wall. 842. p. 
 
 229. 
 Byre v. Marine Ins. Co., 5 Watts & S. 
 
 116. p. 264. 
 Ezell «. English, 6 Port. 807. p. 436. 
 Ezell 0. Miller, 6 Port. 807. p. 436. 
 
TABLE oi' Cases citku. 
 
 XXXIU 
 
 Pabbri v. Phoenix Ins. Co., 55 N. Y. 129. 
 
 p. 251. 
 Fairfield v. Adams, 16 Pick. 381. p. 206. 
 Fairlie «. Fentoti, L. B. 5 Exch. 169. 
 
 pp. 92, 93, 301. 
 Fairman v. Oakford, 5 Hurl. & N. 635. 
 
 p. 278. 
 Falconer v. Garrison, 1 MoCord, 209. p. 
 
 364. 
 Falkner v. Earle, 8 Best & S. 860 ; 32 L. 
 
 J. (Q. B.) 124. pp. 92, 106. 
 Fankboner v. Fankboner, 20 Ind. 62. p. 
 
 364. 
 Farlow v. Ellis, 15 Gray, 229. pp. 87, 
 
 314. 
 Farquharson v. Hunter, Park. 105. p. 
 
 254. 
 Farmers' Bank v. Duvall, 7 Gill & J. 78. 
 
 p. 207. 
 Farmers' Bank v. Vail, 21 N. Y. 485. p. 
 
 209. 
 Farmers', etc.. Bank v. Butchers', etc.. 
 
 Bank, 16 N. Y. 125. p. 205. 
 Farmers', etc.. Bank v. Erie K. Co., 72 N. 
 
 Y. 188. pp. 229, 437. 
 Farmers', etc., Bank v. Logan, 74 N. Y. 
 
 568. p. 435. 
 Farmers', etc.,,Banki). Sprague, 52 N. Y. 
 
 605. p. 46. 
 Farmers and Mechanics' Bank v. Day, 13 
 
 Vt. 36. p. 378. 
 Farmers and Mechanics' Bank v. Cham- 
 plain Transp. Co., 16 Vt. 52; 18 Vt. 
 
 131 ; 23 Vt. 186. pp. 133, 142, 226. 
 Farmers', etc.. National Bank v. Sprague, 
 
 52 N. Y. 605. p. 293. 
 Farnsworth v. Chase, 19 N. H. 535. p. 
 
 305. 
 Farnsworth v. Hemmer, 1 Allen, 494. 
 
 pp. 296, 480, 485. 
 Farrar v. Stackpole, 6 Me. 154. p. 388. 
 Farwell ji. Fay, 7 Mo. 695. p. 386. 
 Fatman v. Thompson, 2 Disney, 482. p. 
 
 30". 
 
 Favenc v. Beimett, 11 East, 38. p. 292. 
 Faviell v. Gascoigne, 7 Exch. 273. pp. 
 
 78, 269. 
 
 Fawcett v. Lowther, 2 Ves. 300. p. 64. 
 Fawkes i>. Lamb, 31 L. J. (Exch.) 168 ; 
 
 8 Jur. (».; s.) 385. ; pp. 380, 386. 
 Faxon v. Hollis, 13 Mass. 428. p. 84. 
 
 Fay V. Alliance Ins. Co., 16 Gray, 455 
 
 pp. 32, 405. 
 Fay V. l.tichmond, 43 Vt. 25. p. 286. 
 Fay V. Strawn, 32 111. 295. p. 435. 
 Fayles v. National Ins. Co., 49 Mo. 350. 
 
 p. 244. 
 Fazakerley v. Wiltshire, 1 Stra. 466. p. 
 
 463. 
 Feeter ?>. Heath, 11 Wend. 477. p. 200. 
 Felix (The), 2 Ad. & E. 273. p. 225. 
 Fellowes v. Mayor of New York, 17 Hun, 
 
 249. pp. 37, 52. 
 Fenderson v. Owen, 54 Me. 374. p. 364. 
 Fenn v. Harrison, 3 Term Kep. 757. p. 
 
 286. 
 Fennings v. Lord Grenville, 1 Taun. 241. 
 
 pp. 282, 333. 
 Ferguson u. Clifford, 37 N. H. 86. p. 
 
 314. 
 Ferris v. Comstock, 38 Conn. 513. p. 
 
 375. 
 Field V. Banker, 9 Bosw. 467. p. 108. 
 Field V. Kinnear, 4 Kan. 476. p. 309. 
 Field V. Lelean, 30 L. J. (Exch.) 68. pp. 
 
 362, 379, 380. 
 Field «. Tenney, 47 N. H. 513. p 284. 
 Fields V. Stunston, 1 Coldw. 40. p. 214. 
 Filgor V. Penny, 2 Murph. 182. p. 468. 
 Finley v. Wood, 1 Esp.'178. p. 270. 
 First National Bank v. Carpenter, 41 
 
 Iowa, 518. p. 280. 
 First National Bank ». Hogan, 47 Mo. 
 
 472. p. 244. 
 First National Bank v. Lanier, 11. "Wall. 
 
 369. p. 247. 
 First National Bank v. MoManigle, 69 
 
 Pa. St. 156. p. 316. 
 First National Bank v. Ricker, 71 HI. 439. 
 
 p. 211. 
 Fisher v. Geddes, 15 La. An. 14. p. 231. 
 Fisher v. Leland, 4 Cash. 456. p. 214. 
 Fisher v. Sargent, 10 Gush. 250. pp. 4-5, 
 
 52. 
 Fisher 1). Western Assur. Co., 11 Upper 
 
 Canada Q. B. 255. p. 40. 
 Fiske V. Newton, 1 Denio, 45. pp. 225, 
 
 235. 
 Fitch V. Carpenter, 43 Barb. 40. p. 374. 
 Fitch o. Fitch, 2 Esp. 543. p. 105. 
 Fitch -J. Rawling, 2 H. Black. 398. pp. 
 
 39, 40. 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Fitzgibbon v. Kinney, 3 Harr. (Del.) 317. 
 
 p. 82. 
 Fitzherbert v. Mather, 1 Term Eep. 12. 
 
 p. 286. 
 Pltzpatrick v. Pain, 3 Coldw. 15. p. 315. 
 Fitzsimmona v. Joslin, 21 Yt. 129. p. 
 
 286. 
 Plannagan v. Chicago, etc., E. Co. (Sup. 
 
 Ct. Wis.), p. 326. 
 Fleckner v. United States Bank, 8 Wheat. 
 
 357. p. 244. 
 Fleet V. Murtoni L. R. 7 Q. B. 126; 1 
 
 Moak's Eep. 32. pp. 90, 106, 301, 882. 
 Fletcher v. Seekell, 1 E. I. 267. p. 100. 
 Flint V. Flint, 6 Allen, 34. p. 214. 
 Floyer v. Edwards, Cowp. 112. p. 458. 
 Flureau v. Thoruhill, 2 W. Black. 1078. 
 
 p. 370. 
 Flynn b. Murphy, 2 E. D. Smith, 378. 
 
 pp. 46, 54, 103. , 
 Foley V. Bell, 6 La. An. 760. p. 75. 
 Foley V. Mason, 6 Md. 37. p. 83. 
 Folsom V. Merchants', etc., Ins. Co., 88 
 
 Me. 414. p. 40. 
 Forbes v. Omaha National Bank, 11 Ceht. 
 
 L. J. 209. p. 206. 
 Fordv. Mitchell, 21 Ind. 64. pp. 215, 216, 
 
 217. 
 Ford V. Tirrell, 9 Gray, 401. pp. 53, 391. 
 Ford V. Yates, 2 Man. & G. 549; 2 Scott 
 
 N. R. 645. p. 451. 
 Forrester (The), Newb. Adm. 81. p. 455. 
 Forrestier v. Bordman, 1 Story, 43. p. 
 
 290. 
 Forsee v. Matlock, 7 Heisk. 421. p. 82. 
 Forster v. Clements, 2 Camp. 17. p. 211. 
 Forsythe v. Price, 8 Watts, 282. p. 269. 
 Fort V. Bank of Cape Fear, 1 Phill. L. 
 
 417. p. 210. 
 Forward v. Pittard, 1 Term Rep. 27. pp. 
 
 126, 136. 
 Foster v. Jolly, 1 Cromp. M. & R. 707. 
 
 p. 365. 
 Poster V. M'entor Life Assur. Co., 3 El. & 
 
 B1.48. p. 265. 
 Poster V. Robinson, 6 Ohio St. 90. p. 269. 
 Fowler v. JEtna Ins. Co., 7 Wend. 270. 
 
 p. 406. 
 Fowler i>. Pickering, 119 Mass. 38. p. 58. 
 Fox V. Black, Park. 620. p. 254. 
 Fox V. Clifton, 6 Bing. 792. pp. 280, 284. 
 
 Fox V. Parker, 44 Barb. 541. p. 386. 
 Foye V. Leighton, 22 N. H. 71. p. 282. 
 Franchot v. Leach, 5 Cow. 508. p. 365. 
 Prank v. Jenkins, 22 Ohio St. 577. p. 
 
 284. 
 Frankfort Bank v. Anderson, 8 A. K. 
 
 Marsh. 932. p. 244. 
 Franklin v. Firth, 3 Bro. 0. 0. 483. p. 
 
 294. 
 Franklin Fire Ins. Co. i>. Brock, 57 Pa. 
 
 St. 74. p. 407. 
 Franklin Fire Ins. Co. v. Chicago Ice 
 
 Co., 32 Md. 102. p. 262. 
 Franklin Fire Ins. Co. o. ITpdegraff, 43 
 
 Pa. St. 350. p. 260. 
 Franklin Ins. Co. v. Humphrey, 65 Ind. 
 
 549. p. 440. 
 Prazier v. Harvey, 34 Conn. 469. p. 
 
 306. 
 Prazier v. Warfield, 18 Md. 279. pp. 457, 
 
 462. 
 Freary v. Cooke, 14 Mass. 488. p. 77. 
 Frederick v. Marquette, etc., R. Co., 37 
 
 Mich. 342. p. 215. 
 Freeman v. BloomSeld, 43 Mo. 391. p. 
 
 283. 
 Freeman v. Carpenter, 17 Wis. 126. p. 
 
 281. 
 Freeman v. Loder, 11 Ad. & E. 597. p. 
 
 21. 
 Freeman i>. Newton, 3 B. D. Smith, 246. 
 
 pp. 216, 220. 
 Freeman v. Phillips, 4 Mau. & Sel. 486. 
 
 p. 17. 
 French v. Backhouse, 5 Burr. 2727. p. 
 
 291. 
 French v. Carhart, 1 N. T. 102. p. 388. 
 French v. Eeid, 6 Binn. 308. p. 291. 
 French v. Styring, 2 O. B. (s. s.) 357. p. 
 
 283. 
 Frith V. Barker, 2 Johns. 827 ; 2 Marsh. 
 
 Dec. 208. pp. 126, 237, 429, 466, 478, 
 
 485. 
 Puller V. Naugatuck R Co., 21 Oonn. 
 
 557. p. 322. 
 Fulton V. Blake, 12 Am. L. Reg. (n. s.) 
 
 779. p. 227. 
 Pulton Bank v. Benedict, 1 Hall, 4961 
 
 p. 143. 
 Pulton Bank v. New York, etc.. Canal 
 
 Co., 4 Paige, 130. p. 143. 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Pulton Ins. Co. v. Milner, 23 Ala. 420. 
 
 Gault V. Van Zile, 37 Mich. 22. pp. 112, 
 
 pp; 40, 257. 
 
 388. 
 
 Punk V. Ely, 45 Pa. St. 444. p. 82. 
 
 Gavinzel v. Crump, 22 Wall. 808. p. 
 
 Purniss v. Hone, 8 Wend. 247. pp. 314, 
 
 364. 
 
 815. 
 
 Geddes v. Wallace, 2 Bli. 270. p. 288. 
 
 
 General Steam Nav. Co. v. Morrison, 13 
 
 Gabay v. Lloyd, 8 Barn. & Cress. 793. 
 
 C. B. 581. p. 324. 
 
 pp. 48, 251, 252, 439. 
 
 George v. Bartlett, 22 N. H. 496. p. 443. 
 
 Gabay v. Lloyd, 5 Barn. & Cress. 797 ; 
 
 George v. Joy, 19 N. H. 514. p. 377. 
 
 5 Dears. & B. C. 0. 641. p. 414. 
 
 George v. Pritchard, Ryan & M. 417. p. 
 
 Gadd V. Houghton, Ij. K. 1 Bxoh. Div. 
 
 870. 
 
 357. p. 301. 
 
 Georgia Masonic, etc., Ins. Co. v. Whit- 
 
 Gahagen v. Boston, etc., !R. Co., 1 Allen, 
 
 man, 52 Ga. 419. p. 266. 
 
 187. p. 329. 
 
 Gerald's Case, 28 How. St. Tr. 1407, note. 
 
 Gairdner v. Senhouse, 3 Taun. 16. p. 
 
 p. 58. 
 
 254. 
 
 Gerard v. Cook, 2 Bos. & Pul. N. R. 109. 
 
 Galena Ins. Co. o. Kupfer, 28 HI. 332. 
 
 p. 331. 
 
 p. 450. 
 
 Gerhard v. Neese, 36 Texas, 635. p. 380. 
 
 Gallagher v. Shipley, 24 Md. 418. p. 
 
 German Savings Bank v. Jefferson, 10 
 
 267. 
 
 Bush, 326. p. 246. 
 
 Gallagher i>. "Waring, 9 Wend. 20. p. 
 
 Gerst V. Jones, 10 Cent. L. J. 151. p. 309. 
 
 308. 
 
 Gethin «. Gethin, 2 Sw. & Tr. 560. p. 
 
 Gallatin ». Bradford, 1 Bibb, 209. pp. 
 
 61. 
 
 70, 468, 477, 485. 
 
 Gibbon v. Young, 2 J. B. Moo. 224. p. 
 
 Galloway »; Hughes, 1 Bailey, 558. pp. 
 
 409. 
 
 193, 227, 281. 
 
 Gibson v. Crick, 1 Huri. & Colt. 142. p. 
 
 Gallup V. Lederer, 1 Hun, 282. pp. 69, 
 
 297. 
 
 100. 
 
 Gibson v. Culver, 17 Wend. 305. pp. 
 
 Gard v. CalUrd, 6 Mau. & Sel. 69. p. 17. 
 
 135, 140, 141, 143, 226, 232. 
 
 Gardiner v. Gray, 4 Camp. 144. p. 309i 
 
 Gibson v. Lupton, 9 Bing. 297. p. 283. 
 
 Gardner v. Clark, 21 N. T. 399. p. 314. 
 
 Gibson v. Small, 4 H. L. Cas. 397. p. 
 
 Gardom, Ex parte, 15 Ves. 286. p. 280. 
 
 274. 
 
 Garey v. Meagher, 83 Ala. 630. pp. 215, 
 
 Gibson v. Smith, 4 H. L. Cas. 398. p. 
 
 242. 
 
 870. 
 
 Garland v. Salem Bank, 9 Mass. 408. p. 
 
 Gilbart v. Dale, 5 Ad. & B. 543. p. 215. 
 
 468. 
 
 Gilbert v. Sage, 57 N. Y. 639. p. 82. 
 
 Garland ». Spsnoer, 46 Me. 528. p. 311. 
 
 Giles ». Edwards, 7 Term Rep. 181. p. 
 
 Garnett v. Willan, 5 Bam. & Aid. 53. 
 
 311. 
 
 p. 225. 
 
 Giles V. Jones, 11 Exch. 393. p. 454. 
 
 Garrison v. Memphis Ins. Co., 19 How. 
 
 Giles V. Perkins, 9 East, 12. p. 210. 
 
 312. p. 436. 
 
 Giles V. The Cynthia, 1 Pet. Adm. 207. 
 
 Garside v. Navigation- Co., 4 Tferm Bep 
 
 p. 237. 
 
 581, 582. pp. 135, 138, 189, 225. 
 
 Gill V. Kuhn, 6 Serg. & E. 337. pp. 283, 
 
 Garvey v. Colcock, 1 Nott & M. 231. 
 
 284. 
 
 p. 244. 
 
 Gillespie o. Thompson, 6 El. & Bl. 477. 
 
 Gates V. Madison County Ins. Co., 5 N. Y. 
 
 p. 222. 
 
 469. p. 268. 
 
 Gillett V. Ellis, 11 HI. 579. p. 221. 
 
 Gateward's Case, 6 Coke, 60 b. p. 331. 
 
 Gillett V. Mawman, 1 Taun, 138. p. 278. 
 
 Gatliffe v. Bourne, 2 Moo. & B. 100. 
 
 Gillis V. Bailey, 1 Post. 149. p. 288. 
 
 - pp. 137, 143. 
 
 Gilman v. Biopelle, 18 Mich. 145. p. 
 
 Gatling v. Newell,; 9 Ind. 572. p. 308. 
 
 400. 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 Gilman v. Vaughan, 44 Wis. 646. p. 317. 
 Gilmore v. Carmen, 1 Smed. & M. 279. 
 
 p. 436. 
 Gilpin V. Enderby, 6 Barn. & Aid. 964. 
 
 p. 283. 
 Gindrat v. Mechanics' Bank, 7 Ala. 325. 
 
 p. 206. 
 Girard Bank v. Bank of Penn Township, 
 
 39 Pa. St. 92. p. 205. 
 Girard Fire Ins. Co. v. Stephenson, 44 
 
 Pa. St. 298. p. 259. 
 Given v. Charron, 16 Md. 502. pp. 68, 
 
 54, 276. 
 Glassell v. Thomas, 3 Leigh, 113. p. 311. 
 Gleason v. Walsh, 48 Me. 397. pp. 41, 
 
 276. 
 GicndaleMan, Co. v. Protection Ins. Co., 
 
 21 Conn. 19. p. 56. 
 Gloucester Bank v. Salem Bank, 17 Mass. 
 
 33. p. 211. 
 Goblet V. Beechey, Wigr. on Eitr. Ev. 
 
 161. pp. 355, 400. 
 Goddard b. Merchants' Bank, 4 N. Y. 147. 
 
 p. 211. 
 Goddard v. Pratt, 16 Pick. 412. p. 282. 
 Godden v. Shipley, 7 B. Mon. 579. p. 
 
 206. 
 Goff ». Eehoboth, 2 Gush. 475. p. 317. 
 Golden v. Manning, 3 Wils. 429. p. 225. 
 Golden ». Manning, 2 W. Black. 916. p. 
 
 135. 
 Golden Fleece Co. v. Cable Co., 2 Nev. 
 
 812. p. 390. 
 Goldshede v. Swan, 1 Exoh. 158. p. 364. 
 Goldsmith v. Bryant, 26 Wis. 84. p. 315. 
 Goldsmith v. Manheim, 109 Mass. 187. 
 
 p. 286. 
 Goldsmith v. Sawyer, 46 Cal. 209. p. 
 
 112. 
 Goodall V. New England Fire Ins. Co., 25 
 
 N. H. 169. p. 55. 
 , Goode V. Harrison, 5 Barn. & Aid. 147, 
 
 p. 284. 
 Goode V. McCartney, 10 Texas, 193. p. 
 
 283. 
 Goodenow «. Tyler, 7 Mass. 36 ; 6 Am, 
 
 Dec. 22. pp. 180, 284, 290, 829. 
 Goodfellow V. Meegan, 82 Mo. 280. pp, 
 
 81, 462. 
 Gnpdland o, Blewith, 1 Camp. 477. p. 
 
 292. 
 
 Goodman v. Clarke, 65 Me. 280. p. 317. 
 Goodnow V. Parsons, 36 Vt. 47. p. 62. 
 Goodrich v. Stevens, 5 Lans. 230. p. 375. 
 Goodson V. Johnson, 36 Texas, 622. p. 
 
 214. 
 Goodyear v. Ogden, 4 Hill, 104. p. 105, 
 
 887. 
 Gordon v. Little, 11 Am. Dec. 632; 8 
 
 Serg. & E. 557. pp. 96, 123, 167. 
 Gordon v. Swan, 2 Camp. 429. p. 805 
 Gore V. McBrayer, 18 Cal. 582. p. 890 
 Gorrissen a. Perrin, 2 C. B. (n. s.) 681. 
 
 p. 873. 
 Gosling V. Higgins, 1 Camp. 451. p. 136. 
 Goss «. Lord Nugent, 5 Barn. & Adol. 
 
 64. pp. 364, 365. 
 Gould V. Boston Duck Co., 13 Gray, 452. 
 
 p. 332. 
 Gould V. Hill, 2 Hill, 624. pp. 136? 137, 
 
 140. 
 Gould u. Oliver, 4 Bing. N. C. 134. pp. 
 
 29, 221. 
 Goule V. Hayward, 1 Cal. 345. p. 283. 
 Governor v. Withers, 5 Gratt. 24. pp. 
 
 112, 453. 
 Governors v. Scarlett, 2 You. & J. 880. 
 
 p. 463. 
 Gowan v. Jackson, 20 Johns. 176. p. 282. 
 Grade «. Maryland Ins. Co., 8 Cranch, 
 
 75. pp. 253, 404. 
 Grafton Bank v. Moore, 18 N. H. 99. p. 
 
 282. 
 Grafton's Case, 1 Modern, 10. p. 468. 
 Graham v. Dyster, 2 Stark. N. P. 21. p. 
 
 290. 
 Graham V. Williams, 16 Serg. & K. 257; 
 
 16 Am. Dec. 569. p. 70. 
 Grand Trunk R. Oo. v. Bichardson, 91 U. 
 
 S. 454. p. 328. 
 Grant v. Howard Ins. Co., 5 Hill, 10. p. 
 
 262. 
 Grant v. Kearney, 12 Price, 778. p. 105. 
 Grant v. Lexington Fire Ins. Co., 5 Ind. 
 
 23. p. 45. • 
 
 Grant v. Maddox, 15 Mee. & W. 737. pp. 
 
 868, 394. 
 Grantham v. Hawley, Hob. 182. p. 172, ' 
 Gratitudine (The), 3 Bob. Adm. 240. p. 
 
 238. 
 Graves v. Legg, 11 Exoh. 642; 2 Hurl. & 
 
 N. 210. pp. 47, 284. 
 
TABLE OF CASES CITED. 
 
 XXXVU 
 
 Bray ». Harper, 1 Story, 574. pp. 364, 
 
 378, 402. 
 Gray ». Murray, 3 Johns.' Ch. 167. pp. 
 
 278, 289. 
 Gray v. Swan, 1 Har. & J. 142. p. 151. 
 Great Xortbern K, Oo. v. Eastern Coun- 
 ties E. Co., 6 El. & Bl. 327. p. 288. 
 Great Western E. Co. v. Cunliffe, L. E. 
 
 9 Ch. 525. p. 295. 
 Greaves v. Ashlin, 3 Camp. 426. p. 25. 
 Greaves v. Legg, 11 Exch. 644; 2 Hurl. & 
 
 N.210. pp. 111,288. 
 Greeley v. Wyeth, 10 N. H. 16. p. 280. 
 Greely v. Bartlett, 1 Greenl. 172. pp. 
 
 284, 290. 
 Green v. Beesley, 2 Bing. N. C. 108. p. 
 
 283. 
 Green v. Disbrow, 7 Lans. 381 ; 56 N. Y. 
 
 386. p. 286. 
 Green v. Farmer, 4 Burr, 2221. p. 99. 
 Green B.Hill, 4 Texas, 465. p. 97. 
 Gh-een v. Kopke, 18 C. B. 549. p. 301. 
 Green v. Milwaukee, etc, E. Co., 88 
 
 Iowa, 100; 40 Iowa, 410. . pp. 216, 217. 
 Green v. Moffett, 22 Mo. 529. p. 454. 
 Greene v. Day, 84 Iowa, 328. p. 364. 
 Greene v. Tyler, 39 Pa. St. 361. p. 458. 
 Greenfield Bank v. Crafts, 2 Allen, 269. 
 
 p. 286. 
 Greenwood v. Burns, 60 Mo. 52. p. 292. 
 Gregory v. Christie, 3 Doug. 419. pp. 
 
 254, 257. 
 Gregory II. Wendell, 89 Mich. 887. p. 96. 
 Grider v. Clopton, 27 Ark. 244. p. 365. 
 Griffin v. Blandford, Cowp. 62. p. 112. 
 Griffin v. Eice, 1 Hilt. 184. p. 103. 
 Griffith V. Buffum, 22 Vt. 181. p. 283. 
 Griffith V. Lee, 1 Car. & P. 110. p. 136. 
 Griffiths V. Puleston, 13 Mee. & W. 358. 
 
 p. 268.' 
 Griggs V. Austin, 3 Pick. 20. p. 237. 
 Grimstead v. Marlowe, 4 Term Eep. 717. 
 
 p. 331. 
 Grinnan v. Walker, 9 Iowa, 426. p. 206. 
 Grinnell v. Western Union Tel. Co., 113 
 
 Mass. 229. p. 488. 
 Grisling V. Wood, Cro. Eliz. 85. p. 420. 
 Grissell V. Bristowe, L. E. 4 C. B. 36. p. 
 
 288. 
 Grissell V, Bobinsoo, S' Bing. N. C. 11. 
 
 p. 270: 
 
 Groat V. Gile, 29 Iowa, 431. p. 451. 
 Gross V. CrisB, 3 Gratt. 262. p. 452. 
 Grosvenor tj. Eailroad Co., 39 N. Y, 84. 
 
 p. 215. 
 Grymes v. Sanders, 98 U. S. 55. p. 811. 
 Guichard v. Morgan, 4 J. B. Moo. 36. 
 
 p. 290. 
 Guild V. Baldridge, 2 Swan, 295. p. 468. 
 Gulliver v. Adams Express Co., 88 HI. 
 
 503. p. 238. 
 Gumbel v. Abrams, 20 La. An. 568. p. 
 
 284. 
 Gunther v. Atwell, 19 Md. 157. pp. 308, 
 
 809. 
 Gumey ». Atlantic, etc., E. Co., 58 N. Y. 
 
 858. p. 309. 
 Gurney v. Behrend, 8 El. &B1. 634. p. 
 
 40. 
 Gurney v. Howe, 9 Gray, 404. p. 316. 
 Guy V. Oakley, 13 Johns. 332. p. 292., 
 
 Hackney v. Jones, 3 Humph. 612. p. 
 
 292. 
 Haddock's Case, T. Eaym. 485. p. 464. 
 Hadley v. Clinton, etc., E. Co., 13 Ohio 
 
 St. 502. p. 306. 
 Hagan v. Domestic Sewing-Machine Co., 
 
 9 Hun, 73. p. 397. 
 Hagerstown Turnpike Co. v. Creeger, 3 
 
 Har. & J. 122. p. 463. 
 Hagerty v. Scott, 10 Texas, 525. p. 100. 
 Hagey v. Hi», 75 Pa. St. 108. p. 364. 
 Haggerty v. Palmer, 6 Johns. Ch. 437. 
 
 pp. 314, 315. 
 Hale V. Gibbs, 43 Iowa, 880. p. 37. 
 Hall V. Benson, 7 Car. & P. 711. p. 100. 
 Hall V. Betty, 4 Man. & G. 410. p. 370. 
 Hall V. Condor, 2 C. B. (n. s.) 22. p. 306. 
 Hall V. Glidden, 39 Me. 445. p. 84. 
 Hall V. Insurance Co. of North America, 
 
 58N.Y. 292. p. 259. 
 Hall v.. Janson, 4 El. & Bl. 500. p. 439. 
 Hall V. Lanning, 91 U. S. 160. p. 284. 
 Hall V. Nottingham, 24 Week. Eep. 58. 
 
 p. 331. 
 Hall V. Plassan, 19 La. An. 11. p. 308. 
 Hall V. Eeed, 2 Barb. Ch. 500. p. 453. 
 Hall V. Storrs, 7 Wis. 258. pp. 30, 299. 
 Hall V. United States Ins. Co., 5 Gill, 484. 
 
 p. 248. 
 HaU V. Young, 37 N. H. 134. p. 830. 
 
XXXVui 
 
 TABLE OF CASKS CITBD. 
 
 Halliday v. Hart, 80 N. Y. 4T4. p. 864. 
 Halliday v. MoDougall, 20 Wend. 81. p. 
 
 282. 
 Hallifax v. Chambers, 4 Mee. & W. C02. 
 
 p. 267. 
 Hallings v. Connard, Cro. Eliz. 517. p. 
 
 270. 
 Halls V. Howell, Harp. 427. p. 206. 
 Halsey v. Brown, 8 Day, 846. pp. 121, 
 
 148, 294. 
 Halstead v. Schmelzel, 17 Johns. 80. p. 
 
 283. 
 Halwerson v. Cole, 1 Spears, 321. p. 98. 
 Hamilton v. Lycoming Ins. Co., 5 Pa. St. 
 
 844. p. 244. 
 Hamilton v. Lycoming Ins. Co., 17 Pa. 
 
 St. 839. p. 82. 
 Hamilton v. Kickerson, 13 Allen, 351. 
 
 p. 100. 
 Hamilton v, Eoyse, 2 Soh. & Lef. 380. 
 
 p. 288. 
 Hammond v. Varlan, 54 N. Y. 398. p. 
 
 286. 
 Hammond v. "Wadhams, 5 Mass. 354. p. 
 
 88. 
 Hammond v. Warfield, 2 Har. & J. 151. 
 
 p. 102. 
 Hancox v. Fishing Ins. Co., 2 Sumn. 132. 
 
 p. 251. 
 Hanley v. Life Assn., 4 Mo. App. 258. p. 
 
 266. 
 Hanmer v. Chance, 11 Jur. (ir. s.) 897; 
 
 18 Week. Kep. 856. pp. 17, 27, 831. 
 Hanson v. Busse, 45 111. 498. pp. 808, 
 
 309. 
 Harbert v. Neil, 49 Texas, 148. p. 290. 
 Harding v. Metz, 1 Tenn. Ch. 610. p. 
 
 814. 
 Hacding v. The Maverick, 5 Law Bep. 
 , 106. pp. 71, 324. 
 Hare ii. Barstow, 8 Jur. 928. p. 489. 
 Hare v. Henty, 10 C. B. (n. s.) 65. pp. 
 
 96, 209. 
 Hargos v. Stone, 5 N. Y. 78. pp. 308, 
 
 809. 
 Harland v. Cooke, Preem. 820. p. 16. 
 Harmon v. Salman Falls Man. Co., 85 
 
 Me. 447. p. 54. 
 Harnor v. Groves, 15 C. B. 667. p. 864. 
 Harper v. Albany Ins. Co., 17 N. Y. 194. 
 
 pp. 158, 258, 261. 
 
 Harper v. Calhoun, 7 How. (Miss.) 203. 
 
 p. 30. 
 Harper v. Charleswortb, 4 Bam. & Cress. 
 
 575. p. 244. 
 Harper v. City Ins. Co., 1 Bosw. 520. 
 
 pp. 148, 157, 258, 261. 
 Harper v. Pound, 10 Ind. 32. pp. 22, 
 
 442. 
 Harrington v. McShane, 2 Watts, 443. 
 
 p. 215. 
 Harris v. Carson, 7 Leigh, 682. pp. 28, 
 
 269. 
 Harris v. Dub, 57 Ga. 77. p. 886. 
 Harris v. Moody, 30 N. Y. 266. pp. 221, 
 
 222. 
 Harris v. Nicholas, 5 Munf. 483. p. 276. 
 Harris v. Panama K. Co., 58 N. Y. 600. 
 
 p. 805. 
 Harris v. Bathbun, 2 Eoyes, 312. p. 875. 
 Harris v. Tumbridgo, 8 Abb. N. C. 291. 
 
 pp. 49, 50. 
 Harrison ». G-odman, 1 Burr. 16. p. 463. 
 Harrison v. Handley, 1 Bibb, 443. p. 
 
 817. 
 Harrison v. Sharp, Bunb. 174. p. 178. 
 Hart V. Hammettf 18 Vt 127. p. 874. 
 Hart V. Marks, 4 Brad£ 163. p. 399. 
 Hart V. Windsor, 12 Mee. & W. 68. p. 
 
 370. 
 Hart V. Young, 1 Lans. 417. p. 380. 
 Hartford Bank v. Stedman, 3 Conn. 489. 
 
 pp. 205, 206. 
 Hartford Protection Ins. Co. v. Harmer, 
 
 2 Ohio St. 452. p. 55. 
 Hartje v. Collins, 46 Pa. St. 268. p. 298. 
 Hartop V. Hoare, 1 Wils. 8. p. 17. 
 Hartshorne v. Johnston, 2 Halst. 108. 
 
 p. 238. 
 Hartstone v. Union Ins. Co., 5 Bosw. 
 
 536; 86N. Y. 172. p. 251. 
 Hartwell v. Camman, 10 N. J. Eq. 128. 
 
 p. 868. 
 Harvey v. Cady, 8 Mich. 431. p. 442. 
 Harvey v. Ryan, 42 Oal. 627. p. 890. 
 Haskins v. Warren, 115 Mass. 514. pp. 
 
 69, 99, 100, 814. 
 Haslam v, Adams Express Co., 6 Bosw. 
 
 285. p. 233. 
 Hnsleham ». Young, 6 Q. B. 888. p. 280. 
 Hastie v. De Peyster, 3 0»inea, 190. p. 
 
 265. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Hastings v. Lovering, 2 Pick. 219. p. 
 
 308. 
 Haatings ». Pepper, 11 Pick. 41. p. 229. 
 Hatch V. Hatch, 2 Hayw. 32. p. 354. 
 Hatchwell o. Cooke, 6 Taun. 677. p. 
 
 136. 
 Hauxhurst v. Hovey, 26 Vt. 544. p. 317. 
 Haven v. Wentworth, 2 N. H. 93. p. 286. 
 Hawes v. Lawrence, 3 Sandf. 193 ; 4 N. 
 
 Y. 345. p. 99. 
 Hawes v. Tillinghast, 1 Gray, 289. p. 
 
 283. 
 Hawken v. Bourne, 8 Mee. & "W. 703. p. 
 
 280. 
 Hawkins v. Kemp, 3 East, 410. p. 288. 
 Hawkins v. Pemberton, 6 Eobt. 42. p. 
 
 306. 
 Hawkins v. Eutt, Peake N. P. 187. p. 
 
 316. 
 Hawkins v. Wallis, 2 Willes, 173. p. 112; 
 Hawley v. James, 5 Paige, 323. p. 288. 
 Hawtayne ». Bourne, 7 Mee. & W. 696. 
 
 p. 281. 
 Hay V. Leigb, 48 Barb. ■SgS. p. 378. 
 Uayden v. Middlesex Turnpike Co., 10 
 
 Mass. 879 ; 6 Am. Dec. 143. p. 146. 
 Hayes v. Moynihan, 60 HI. 409. p. 278. 
 Haynes o. Berks, 3 Bos. & Pul. 599. p. 
 
 209. 
 Hays V. "Waldron, 44 N. H. 584. p. 383. 
 Hayton v. Irwin, 28 "Week. Eep. 138. pp. 
 
 229, 438. 
 Hayward v. Cunnington, 1 Lev. 231 ; 1 
 
 Sid. 854. p. 32. 
 Hayward v. French, 12 Gray, 453. p. 
 
 280. 
 Hayward v. Middletoij, 3 McCbrd, 121. 
 
 pp. 193, 237. 
 Hayward v. Pilgrim Sixjiety, 21 Pick. 
 
 277. p. 143. 
 Haywood v. Long, 5 Ired. L. 438. p. 471. 
 Haywood v. Pickering, L. E. 9 Q. B. 428. 
 
 p. 206. 
 Hazard v. Hazard, 1 Story, 371. p. 283. 
 Hazard «. New England Marine Ins. Co., 
 
 8 Pet. 557. p. 251. 
 Head v. Providence Ins. Co., 2 Cranoh, 
 
 127. pp. 146, 245. 
 Heald v: Cooper, 8 Me. 32. p. 377. 
 Hearne ■». Marine Ins. Co., 20 Wall. 488. 
 p. 439. 
 
 Heart v. State Bank, 2 Dev. Eq. 111. p. 
 
 246. 
 Heath «. Kicker, 2 Me. 72. p. 332. 
 Heaton v. Ashdown, B. E., T., 18 Geo. 
 
 IIL, c. 7. p. 422. 
 Hedge's Appeal, 63 Pa. St. 273. p. 283. 
 Heilner v. Imbrie, 6 Serg. & B. 401. p. 
 
 864. 
 Heisch v. Carrington, 5 Car. & P. 471. p. 
 
 292. 
 Helme v. Philadelphia Life Ina. Co., 61 
 
 Pa. St. 107. p. 265. 
 Helps V. Clayton, 17 C. B. (N. s.) 553. p. 
 
 270. 
 Henderson v. Planters' Bank, 11 Kich. L, 
 
 44. p. 468. 
 Hendrik Hudson,(The), 7 Law Eep. (ir. s.) 
 
 93. p. 286. 
 Hendricks v. Eobinson, 56 Miss. 694. p. 
 
 318. 
 Henkel v. Welsh, 41 Mich. 664. p. 313. 
 Henry v. Martin, 1 W. N. C. 277. p. 83. 
 Henry ». Marvin, 3 B. D. Smith, 71. p. 
 
 292. 
 Henry v. Eisk, 1 Dall. 266. pp. 130, 317. 
 Henshaw v. Clark, 2 Eoot, 104. p. 75. 
 Henson v. Cooper, 3 Scott N. E. 48. p. 
 
 364. 
 Herbert v. Eeid, 16 Ves. 481. p. 355. 
 Herst ». Comeau, 1 Sweeny, 590. p. 378. 
 Hesketh v. Blanchard, 4 East, 144. p. 
 
 283. 
 Hesketh v. Braddock, 3 Burr. 1858. p. 
 
 463. 
 Hewett V. Buck, 17 Me. 147. p. 75. 
 Hibbard v. Mills, 46 Vt. 243. p. 365. 
 Hibbert o. Shee, 1 Camp. 113. p. 308. 
 Hibler v. McCartney, 31 Ala. 501. pp. 
 
 329, 436. 
 Hickox V. Naugatuck E. Co., 31 Conn. 
 
 281. pp. 216, 220. 
 Hicks V. Bell, 3 Cal. 219. p. 390. 
 Hicks V. Cram, 17 Vt. 449. p. 282. 
 Hicks V. Shield, 7 El. & Bl. 633. p. 237. 
 Hider v. Dowell, 1 Taun. 383. p. 143. 
 Higgins V. Moore, 34 N. T. 425 ; 6 Bosw. 
 
 344. pp. 45,292. 
 Higgins V. Senior, 8 Mee. & W. 834. pp. 
 
 92,344. 
 Higgins V. United States Mail Steamship 
 Co., 3 Blatchf. 282. p. 408. 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Hight 1). Bacon, 126 Mass. 10. p. 112. 
 Hill V. Evans, 31 L. J. (Oh.) 457. p. 368. 
 Hill V. Hibernia Ins. Co., 10 Hun, 26. 
 
 pp. 55, 408. 
 Hill a. Manchester Water-Works Co., 8 
 
 Barn.* Cress. 866; 2 Nev. & M. 573. 
 
 p. 245. 
 Hill V. Peyton, 21 Gratt. 386. p. 864. 
 Hill V. Portland, etc., R. Co., 55 Me. 438. 
 
 p. 329. 
 Hill V. Ward, 7 HI. 285. p. 333. 
 Hills V. Hoitt, 18 N. H. 603. p. 330. 
 Hilton V. Granville, Dav. & M. 614 ; 5 Q. 
 
 B. 701. p. 63. 
 Hinckley v. Barnstable, 109 Mass. 126. 
 
 p. 329. 
 Hine v. Pomeroy, 39 Vt. 211. pp. 79, 80. 
 Hinnemann v. Rosenbaek, 39 N. Y. 98. 
 
 p. 364. 
 Hinsdale v. Bank of Orange, 6 Wend. 378. 
 
 p. 212. 
 Hinton v. Coleman, 45 Wis. 165. p. 33. 
 Hinton v. Locke, 5 Hill, 434. pp. 45, 435. 
 Hiscocks V. Hiscocks, 5 Mee. & W. 363. 
 
 p. 398. 
 Hissrick v. McPherson, 20 Mo. 310. p. 
 
 82. 
 Hitt V. Allen, 13 111. 592. p. 317. 
 Hix V. Gardiner, 1 Bulst. 195. pp. 63, 66. 
 Hoadlcy w. McLaine, 10 Bing. 482. p. 
 
 315. 
 Hoare v. Dawes, 1 Doug. 871. p. 284. 
 Hockin v. Cooke, 4 Term Rep. 314. pp. 
 
 337, 454. 
 Hodgson V, Davies, 2 Camp. 530. pp. 
 
 285, 349. 
 Hoe V. Sanborn, 21 N. Y. 552. p. 309. 
 Hoffman v._ Noble,, 6 Mete. 68. p. 238. 
 Holbrook v. Allen, 4 Pla. 87. p. 468. 
 Holbrook v. Burt, 22 Pick. 546. p. 311. 
 Holc'roft V. Barber, 1 Car. & Kir. 4. pp. 
 
 175, 277. 
 Holderness v. Collinson, 7 Barn. & Cress. 
 
 202. pp. 99, 241. 
 Holden v. Dakin, 4 Johns. 421. p. 306. 
 Holding V. Elliott, 5 Hurl. & N. 117. p. 
 
 381. 
 Holding V. Pigott, 7 Bing. 465. pp. 268, 
 
 275, 862. 
 Holford V. Adams, 2 Duer, 471. pp. 40, 
 
 236. 
 
 Hollingworth v. Broderick, 7 Ad. & B. 
 
 44. p. 257. 
 Hollis V. Wells, 8 Pa. L. J. 169. p. 60. 
 Hollister v. Nowlen, 19 Wend. 239. pp. 
 
 136, 137, 140, 221. 
 
 Holmes v. Gale, 1 Ala. 517. p. 805. 
 Holmes v. Johnson, 42 Pa. St. 159. p. 60. 
 Holmes v. Pettingill, 1 Hun, 316. p. 435. 
 Holmes ». Samuel, 15 HI. 412. p. 442. 
 Holmes v. Seely, 17 Wend. 75. p. 352. 
 Home Ins. Co. v. Favorite, 46 111. 268. 
 
 p. 258. 
 Homer v. Dorr, 10 Mass. 26. pp. 192, 
 
 256, 465. 
 Hone V. Mutual Safety Ins. Co., 1 Sandf. 
 
 137. pp. 21, 249, 265, 466, 478, 484. 
 Honeywood v. Honeywood, L. R. 18 Eq. 
 
 306. p. 267. 
 Hood V. Lynn, 1 Allen, 103. pp. 41, 464. 
 Hooper v. Chicago, etc., R. Co., 27 Wis. 
 
 81. pp. 235, 408. 
 Hope «. Oust, 1 East, 58. p. 280. 
 Hopkins v. Grimes, 14 Iowa, 78. p. 400. 
 Hopkins v. Mehaffy, 11 Serg. & R. 129. 
 
 p. 302. 
 Hopkins v. Sanford, 41 Mich. 243. p. 
 
 875. 
 Hopkins v. Tanqueray, 15 0. B. 130. p. 
 
 306. 
 Hopkinson v. Rolt, 9 H. L. Cas. 514. p. 
 
 473. 
 Horn V. Brooks, 61 Pa. St. 407. p. 365. 
 Horn V. Ivy, 1 Vent. 47. p. 243. 
 Horner v. Watson, 79 Pa. St. 242. p. 77. 
 Horton o. Beckman, 6 Term Rep. 760. 
 
 pp. 64, 331. 
 Horton u. Locke, 5 Hill, 437. p. 393. 
 Hosea v. McCrary, 12 Ala. 349. p. 215. 
 Hosley v. Black," 28 N. Y. 438. p. 897. 
 Hotchkiss V. Artisans' Bank, 42 Barb. 
 
 517. pp. 40, 238, 207. 
 Hotchkiss V. Germania Ins. Co., 5 Hun, 
 
 90. p. 262. 
 Hotson V. Browne, 9 0. B. (n. s.) 442. p. 
 
 894. 
 Houghton ». Gilbart, 7 Oar. & P. 701. p. 
 
 102. 
 Houghton 17. Manufacturers' Ins. Co., 3 
 
 Mete. 114. p. 406. 
 Houghton V. Matthews, 3 Bos. & Pul. 489. 
 
 p. 290. 
 
TABLE OF CASES CITED. 
 
 xli 
 
 Housatouic, etc., Bank v. Martin, 1 Mete. 
 
 308. p. 143. 
 Howard v. American Peace Society, 49 
 
 Me. 298. p. 398. 
 Howard v. Bailie, 2 H. Black. 618. p. 
 
 289. 
 Howard v. Great Western Ins. Co., 109 
 
 Mass. 384. p. 45. 
 Howard v. Ives, 1 Hill, 263. p. 209. 
 Howard v. Sheward, L. R. 9 O. P. 148. 
 
 p. 287. 
 Howard's Case, L. K. 1 Ch. 561. p. 289. 
 Howe V. Hardy, 106 Mass. 329. p. 316. 
 Howell V. Harvey, 5 Ark. 270. p. 283. 
 Howell V. Knickerbocker Ins. Co., 44 N. 
 
 Y. 276. p. 266. 
 Howell tt. Schenck, 24 N. J. L. 89. p, 
 
 269. 
 Howes V. Ball, 7 Barn. & Cress. 481. 
 
 288. 
 Hudson V. Clementson, 18 0. B. 213. p, 
 
 409. 
 Hudson V. Johnson, 1 Wash. 10. p. 292, 
 Hughes V. Gordon, 1 Bli. 287. p. 273. 
 Hughes V. Humphreys, 3 El. & Bl. 954. 
 
 p. 464. 
 
 Hughes V. Stanley, 45 Iowa, 622. p. 387. 
 Hughes V. Winona, etc., E. Co. (Sup. Ct. 
 
 Minn.), p. 326. 
 Hulbert v. Carver, 37 Barb. 62. p. 386. 
 Humfrey v. Dale, 7 El. & BI. 266 ; 26 L. 
 
 J. (Q. B.) 137 ; s. c. in Exchequer Cham- 
 ber, El. Bl. & El. 1004 ; 27 L. J. (Q. B.) 
 
 390. pp. 25, 92, 95, 302, 342, 366, 882, 
 
 436. 
 Humphreysville Copper Co. v. Vermont 
 
 Copper-Mining Co., 33 Vt. 92. p. 377. 
 Hunt V, Carlisle, 1 Gray, 257. p. 277. 
 Hunt V. Haskell, 24 Me. 339. p. 238. 
 Hunt V. Hort, 3 Bro. C. C. 311. p. 102. 
 Hunt V. Mickey, 12 Mete. 349. p. 277. 
 Hunt V. Otis Co., 4 Mete. 464. p. 278. 
 Hunt 1). Silk, 5 East, 449. p. 311. 
 Hunter ». Jones, 3 Brews. 370. p. 269. 
 Hursh V. North, 40 Pa. St. 241. p. 305. 
 Hussey v. Jacob, Ld. Baym. 88. p. 20. 
 Hussey v. Thornton, 4 Mass. 405. p.* 
 
 314. 
 Huston V. Clark, 60 N. H. 482. p. 330. 
 Huston V. McArthur, 7 Ohio, 54. pp. 36, 
 
 75. 
 
 Huston ». Peters, 1 Mete. (Ky.) 568. p. 
 
 226. 
 Huston V. Boots, 30Ind. 461. p. 101. 
 Hutchins v. Ladd, 16 Mich. 493. p. 300. 
 Hutchinson v. Bowker, 5 Mee. & W. 535. 
 
 p. 105. 
 Hutchinson v. Tatham, L. B. 8 C. P. 482. 
 
 pp. 302, 362, 382. 
 Hutton V. Warren, 1 Mee. & W. 475. 
 
 pp. 21, 273. 
 Hyde v. Trent, etc., Nav. Co., 5 Term 
 
 Bep. 389. pp. 126, 135, 186, 137, 143, 
 
 215, 224, 226. 
 
 Iddings V. Nagle, 2 Watts & S. 22. p. 
 
 269. 
 Illinois Central E. Co. a. Morrison, 19 111. 
 
 136. p. 220. 
 Illinois Central K. Co. v. Smyser, 38 HI. 
 
 354. pp. 216, 219, 242, 243. 
 Illinois, etc., Ins. Co. v. Fox, 53 111. 151. 
 
 p. 468. 
 Illinois Masons' Benevolent Soc. v. Bald- 
 win, 86 m. 479. p. 33. 
 Illinois Mutual Ins. Co. v. O'Neile, 13 
 
 111.89. p. 55. 
 Indianapolis, etc., B. Co. ». Herndon, 81 
 
 111. 143. p. 238. 
 Indianapolis, etc., B. Co. v. Murray, 72 
 
 ni. 128. p. 235. 
 Inglebright v. Hammond, 19 Ohio St 337. 
 
 p. 466. 
 Ingram i>. Ingram, 2 Atk. 88. p. 288. 
 Inslee v. Jones, Bright. 76. p. 293. 
 Inskeep v. Inskeep, 5 Iowa, 204. p. 61. 
 Insurance Co. v. Troop, 22 Mich. 146. 
 
 p. 364. 
 Insurance Co. v. Weide, 11 Wall. 438. 
 
 pp. 100, 264. 
 Insurance Co. v. Wright, 1 Wall. 456. 
 
 p. 439. 
 Ireland v. Kip, 10 Johns. 490; 11 Johns. 
 
 231. p. 206. 
 Ireland v. Livingston, L. R. 5 Q. B. 516; 
 
 L. R. 2 Q. B. 99; L. R. 5 H. L. Gas. 
 
 395. p. 299. 
 Ireland v. Thomson, 4 C. B. 149. p. 292, 
 Irish V. Dean, 39 Wis. 562. p. 364. 
 Irving V. Thomas, 18 Me. 418. p. 306. 
 Irwin V. Clark, 13 Mich. 10. p. 387. 
 Isabella (The), 8 Ben. 139. pp. 436, 459. 
 
pn 
 
 TABLE OF CASES CITED. 
 
 iBham V. Fox, 7 Ohio St. 317. pp. 83, 
 206. 
 
 Jackson v. .if/tna Ins. Co., 16 B. Mon. 
 
 242. p. 261. 
 Jackson p. Beling, 22 La. An. 877. p. 
 
 473. 
 Jackson o. Gumaer, 2 Oow. 537. p. 462. 
 Jackson v. Henderson, 8 Leigh, 196. p. 
 
 112. 
 Jackson v. Isaacs, 3 Hurl. & N. 406. p. 
 
 237. 
 Jackson v. LerTey, 5 Cow. 402. p. 60. 
 Jackson v. Parkhurst, 4 Wend. 374. p. 
 
 352. 
 Jackson v. Union Bank, 6 Har, & J. 416. 
 
 p. 206. 
 Jackson v. Wetherill, 7 Serg. & K. 480. 
 
 p. 306. 
 Jacobs V. Hessler, 113 Mass. 161. p. 330. 
 Jacobs V. Shorey, 48 N. H. 100. p. 70. 
 Jacques v. Bdgell, 40 Mo. 76. p. 295. 
 James v. McCredie, 1 Bay, 297. p. 290. 
 James v. Eichmond, 5 Ohio, 338. p. 82. 
 James v. Wharton, 3 McLean, 492. p. 
 
 82. 
 Jameson v. Switon, 2 Taun. 225. p. 96. 
 .Jamison v. Ludlow, 3 La. An. 492. p. 
 
 365. 
 Jefferson Ins. Co. v. Cotheal, 7 Wend. 
 
 72. p. 262. 
 Jeffrey v. Keokuk, etc., R. Co. (Sup. Ct. 
 
 Iowa, June, 1879). p. 109. 
 Jelison V. Lee, 3 Woodb. & M. 368. p. 
 
 71. 
 Jenkins v. Cooper, 50 Ala. 419. p. 864. 
 Jenkins v. Harvey, 1 Cromp. M. & E. 
 
 877. p. 26. 
 Jenkins v. Simpson, 2 Shep. 364. p. 811. 
 Jennings ». Broughton, 5 De G. M. & G. 
 
 539. p. 311. 
 .Jennings v, Chenango County Ins. Co., 2 
 
 Denio, 78. p. 151. 
 Jenny Lind Co. v. Bower, 11 Cal. 194. 
 
 p. 388. 
 Jenys v. Fawler, 2 Stra. 946. p. 211. 
 Jessopp V. Lutwyche, 10 Exch. 614. p. 
 
 288. 
 Jewell V. Center, 25 Ala. 498. p. 98. 
 Jewell V. Eailway Co., 66 K. H. 84. pp. 
 26, 322. 
 
 Jewett; In re, 15 Nat. Bank. Eeg. 126. p; 
 
 284. 
 Johnson v. Bank of North Americsi, 5 
 
 Eobt. 554; 45N. T. 67. p. 324. 
 Johnson v. Concord E. Co., 46 N. H. 
 
 213. p. 50. 
 Johnson v. Cunningham, 1 Ala. 249. p. 
 
 289. 
 Johnson v. De Peyst^r, 50 N. T. 466. p. 
 
 278. 
 Johnson v. GilfiUan, 8 Minn. 396. p. 
 
 473. 
 Johnson v. Jones, 4 Barb. 369. p. 286. 
 Johnson V. Kershaw, L. R 2 Exch. 82. 
 
 p. 299. 
 Johnson v. Lightsey, 34 Ala. 169. p. 
 
 322. 
 Johnson v. North- Western, etc., Ins. Co., 
 
 39 Wis. 87. p. 401. 
 Johnson v. Pollock, 58 111. 181. p. 364. 
 Johnson v. Stoddard, 100 Mass. 306. pp. 
 
 37, 315. 
 Johnston v. Cope, 3 Har. & J. 89. p. 
 
 306. 
 Johnston v. Usborne, 11 Ad. & E. 649. 
 
 p. 290. 
 Jolly V. Baltimore Equitable Soc, 1 Har. 
 
 & G. 295. p. 262. 
 Jones V. Allen, 5 Ired. L. 273. p. 471. 
 Jones V. Bowden, 4 Taun. 848. pp. 186, 
 
 306, 307. 
 Jones V. Bradner, 10 Barb. 193. p. 369. 
 Jones V. Bright, 5 Bing. 538. p. 309. ' 
 Jones V. Clarke, 2 Hurl. & N. 725. p. 
 
 375. 
 Jon«s !). Fales, 4 Mass. 252. pp. 121, 20S, 
 
 208. 
 Jones V. Firemen's Fund Ins. Co., 51 N. 
 
 Y.318. p. 262. 
 Jones V. Hoey, 128 Mass. 586. pp. 98, 
 
 804. 
 Jones V. Jones, 21 N. H. 219. p; 84. 
 Jones V. Just, L. R. 3 Q. B. 197. p. 309. 
 Jones V. Littledale, 6 Ad. & E. 486. p. 
 
 802. 
 Jones V. Long, 3 Watts, 326. p. 84. 
 Jones V. Manufacturers' Ins. Co., 8 Cush. 
 
 82. p. 262. 
 Jones V. McLean, 18 Ark. 458. p. 458. 
 Jones 11. Pepperoorne, 28 L. J. (Ch.) 158. 
 D. 96. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 Jones V. Pitcher, 3 Stew. & P. 135. pp. 
 
 324, 436. 
 Jones V. Smith, 2 Bulst. 36. p. 467. 
 Jones V. Trustees, 46 Ala. 626. p. 245. 
 j;ones V. Wagner, 66 Pa. St. 430. p. 77. 
 Jones V. Wamer, 11 Conn. 40. p. 287. 
 ' Jones V. "Waters, 5 Tyrw. 361. p. 11. 
 Jopling I). Dooley, 1 Terg. 289. p. 311. 
 Jordan v. Meredith, 3 Yeates, 318. pp. 
 
 74, 392. 
 Journu V. Bourdieu, Park on Ins. 245. 
 
 p. 401. 
 Juggomohun Ghore v. Manickohund,- 7 
 
 Moo. Ind. App. 263. p. 80. 
 
 Kane v. Colonial Ins. Co., 2 Johns. 264. 
 
 p. 254. 
 Kane v. Smith, 12 Johns. 156. p. 317. 
 Karr v. Stivers, 34 Iowa, 123. p. 82. 
 Kauffman v. Copous, 16 Wend. 478. p. 
 
 200. 
 Kay V. Wheeler, 36 L. J. (C. P.) 180; L. 
 
 B. 2 0. P. 302. p. 436. 
 Kearney i». King, 2 Barn. & Aid. 301. p. 
 
 270. 
 Keckeley v. Cummins, Harp. 268. p. 278. 
 Keeler o. Field, 1 Paige, 312. p. 315. 
 Kell V. Charmer, 22 Beav. 195. p. 400. 
 Kellenberger v. Foresman, 13 Ind. 476. 
 
 p. 270. 
 Kelley v. Todd, 1 W. Va. 197. p. 269. 
 Kellogg u.Griswold, 12 Vt 291. p. 283. 
 Kellogg V. Schnaake, 56 Mo. 137. p. 214. 
 Kelly V. Smith, 1 Blatohf. 290. p. 290. 
 Kelty V. Second National Bank, 52 Barb. 
 
 328. p. 324. 
 Kemp V. Ooughtry, 11 Johns. 109. pp. 
 
 215, 238. 
 Kempson v. Boyle, 3 Hurl. & Colt 763. 
 
 p. 369. 
 Kenehin v. Knight, 1 Wils. 253. p. 36. 
 Kendall v. Field, 14 Me. 30. p. 83. 
 Kendall v. Eussell, 6 Dana, 501. pp. 103, 
 
 442. 
 Kennebec Co. v. Augusta Ins. Co., 6 Gray, 
 
 204. p. 82. 
 Kennebeck Bank v. Pi^e, 9 Mass. 155. 
 
 p. 121. 
 Kenney v. Altvater, 77 Pa. Sit. 34. p. 280. 
 Kent V. Coughtry, 11 Johns. 107. p. 143. 
 Eenyon v. Nichols, 1 K. 1. 106. p. 831. 
 
 Keogh V. Daniell, 12 Wis. 163. pp. 271, 
 
 272. 
 Kerfoot v. HymaUj 52 M. 512. p. 295. 
 Kermott v. Ayer, 11 Mich. 181. p. 817. 
 Kerr v. Love, 1 Wash. (Va.) 172. p. 82. 
 Kerr v. Potter, 6 Gill, 404. p. 283. 
 Kershaw v. Wright* 115 Mass. 361. p. 80. 
 Keyser v. School District, 35 N. H. 483. 
 
 p. 246. 
 Kidston v. Empire Marine Ins. Co., L. B. 
 
 1 C. P. 535. p. 403. 
 Kilgore v. Bulkley, 14 Conn. 367. p. 206. 
 Kimball v. Brawner, 47 Mo. 898. pp. 
 
 296, 444. 
 Kimball v. Cunningham, 4 Mass. 405. p. 
 
 811. 
 Kimber v. Barber, L. R. 8 Ch. 56. p. 
 
 294. 
 Kinder v. Shaw, 2 Mass. 398. p. 290. 
 King 0. Bishop of London, Show. 413, 
 
 420. p. 467. 
 King V. Coopers' Co., 7 Term Rep. 543. 
 
 p. 463. 
 King V. Enterprise Ins. Co., 46 Ind. 43. 
 
 p. 439. 
 King V. King, 4 Scotch Sess. Cas. 683. p. 
 
 61. 
 King V. Savety, 5 H. L. Cas. 627. p. 311. 
 King V. Tappenden, 8 East, 186. p. 
 
 468. 
 King (The) v. Bank of England, Doug. 
 
 626. p. 247. 
 Kingman v. Spurr, 7 Pick. 235. p. 283. 
 Kingsbury v. Taylor, 29 Me. 508. pp. 
 
 306, 309. 
 Kingston v. Krubbs, 1 Camp. 508, p. 
 
 252. 
 Kingston v. Phelps, Peake N. P. 227. p. 
 
 361. 
 Kingston v. Wilson, 4 Wash. C. Ct. 15 
 
 p. 291. 
 Kingston Bank v. BUinge, 40 N. Y. 391. 
 
 p. 468. 
 Kinne D.Ford, 52 Barb. 194. p. 57. 
 Kinney v. Consolidated, etc.. Mining Co., 
 
 4 Sawyer, 382. p. 390. 
 Kinsman v. New York Ins. Co., 6 Bosw. 
 
 460. p. 237. 
 Kirchner D.Venus, 12 Moo. P. C. C. 361. 
 
 p. 58. 
 ,,Kirk r. Hartman, 63 Pa. St. 97. p. 864. 
 
xliv 
 
 TABLE OF CASKS CITED. 
 
 Kirkendall v. Mitchell, 8 McLean, 144. 
 
 p. 388. 
 Kirkland v. Nisbet, Scotch App. Eep. 876. 
 
 p. 101. 
 Ktrkman v Shawcross, 6 Term Rep. 14. 
 
 pp. 239, 341. 
 Kirkpatrick v. Stainer, 22 Wend. 244. 
 
 p. 302. 
 Kirtland v. Montgomery, 1 Swan, 452. 
 
 pp. 215, 236. 
 Kitchell V. Vanadar, 1 Blackf. 356. p. 
 
 238. 
 Kittle «.De Lamator, 3 Neb. 325. p. 214. 
 Kleekamp c.Meyer, 5 Mo. App. 444. p. 
 
 208. 
 Kleine's Appeal, 89 Pa. St. 463. p. 330. 
 Knapp V. Hyde, 60 Barb. 80. . p. 365. 
 Knapp V. United States Express Co., 55 
 
 U. H. 348. p. 236. 
 Knight V. Chambers, 15 C. B. 562. p. 
 
 288. 
 Knight V. Mitchell, 3 Brev. 506. p. 317. 
 Knowles v. Dow, 22 N. H. 387. p. 331. 
 Knowles ». Horsfall, 5 Barn. & Aid. 134. 
 
 pp. 202, 203. 204. 
 Knox V. Artman, 3 Rich. L. 288. p. 270. 
 Knox V. Jones, 2 Dall. 193. p. 317. 
 Knox V. Rives, 14 Ala. 249. p. 215. 
 Kuox »..The Ninetta, Crabbe, 584. p. 
 
 435. 
 •Kortright v. Buffalo Commercial Bank, 
 
 20 Wend. 91. p. 248. 
 Koons V. Miller, 3 Watts & S. 271. p. 
 
 817, 
 Konitzky v. Meyer, 49 N. Y. 571. p. 805. 
 Koehring v. Moemminghoff, 61 Mo. 403. 
 
 p. 364. 
 Kohl V. Linder, 89 111. 195. p. 309. 
 Kohn v. Packard, 8 La. 224; 23 Am. 
 
 Dec. 453. p. 71. 
 Kraft V. Fancher, 44 Md. 204. p. 286. 
 Kremer «. Southern Express Co., 6 
 
 Coldw. 356. p. 235. 
 Kroy V. Chicago, etc., K. Co., 32 Iowa, 
 
 427. p. 327. 
 Kruger v. Wilcox, Amb. 252. p. 20. 
 Kuhlman v. Brown, 4 Pick. 479. p. 293. 
 
 Lacon d. Hooper, 6 Term Eep. 224. p. 
 
 no. 
 
 Lttlferty V. Jelley, 22 Ind. 471. p. 294. 
 
 Lamb v. ttrover, 47 Barb. 817. p.«283. 
 Lamb v. Klaus, 80 Wis. 94. p. 817. 
 Lamb v. Farktnan, 1 Sprague, 343. pp. 
 
 221, 222. 
 Lampton v. Haggard, 8 Mon. 149. p 
 
 886. 
 Lancaster Bank v. Woodward, 18 Pa. St. 
 
 857. p. 70. 
 Landis v. Turner, 14 Cal. 573. p. 82. 
 Lane o. Bailey, 47 Barb. 395. p. 435. 
 Lane v. Cotton, 1 Salk. 143; s. c. 1 Ld. 
 
 Raym. 649. p. 186. 
 Lang «. Gale, 1 Mau. & Sel. 111. p. 111. 
 Langdale, Ex parte, 2 Rose, 444. p. 284. 
 Langdon v. Equitable Ins. Co., 1 Hall, 
 
 227. p. 259. 
 Langdon v. Town of Castleton, 30 Vt. 
 
 285. p. 52. 
 Langford v. Cumraings, 4 Ala. 46. p. 41. 
 Lansdowne v. Somerville, 8 Fost. & Pin. 
 
 236. p. 45. 
 Lapham v. Atlas Ins. Co., 24 Eick. 1. p. 
 
 258. I 
 
 Larue v. Rowland, 7 Barb. 107. p. 83. 
 Lassell v. Reed, 6 Greenl. 222. p. 267. 
 Lattomus v. Farmers' Mutual Ins. Co., 3 
 
 Houst. 254. p. 440. 
 Laussatt v. Lippincott, 6 Serg. & E. 386. 
 
 pp. 289, 290, 291. 
 Laveroni v. Drury, 16 Jur. 1024; 8 Exch. 
 
 166. p. 436. 
 Law V. Hollingsworth, 7 Term Rep. 160. 
 
 p. 257. 
 Lawrence u. Aberdein, 5 Barn. & Adol. 
 
 107. p. 414. 
 Lawrence v. American National Bank, 
 
 54 N. T. 432. p. 468. 
 Lawrence v. Gallagber, 10 Jones & Sp. 
 
 809. p. 369. 
 Lawrence «. McGregor, Wright, 193. p. 
 
 319. 
 Lawrence o. Stonington Bank, 6 Conn. 
 
 521. p. 209. 
 Lawson i>. Richards, 6 Phila. 179. p. 
 
 209. 
 Lawson «. Worms, 6 Cal. 365. p. 237. 
 Laybourn v. Crisp, 4 Mee. & W. 320. 
 
 p. 17. 
 Laycoek u. Davidson, 11 La. An. 828. 
 
 p. 364. 
 Lazarus o. Bryson, 3 Cinn. 54. p. 295. 
 
TABLK OF CASES CITED. 
 
 xlv 
 
 Xiazare v. Jacques, 15 La. An. 699. p. 
 
 366. 
 Jjea,». Stroud, pp. 129,131. . 
 Leach v. Beardslee, 22 Conn. 404. p. 
 
 290. 
 Leach o. Perkins, 17 Me. 462. p. 46. 
 Leake v. Sutherland, 25 Ark. 219. p. 
 
 294. 
 Leame v. Bray, 3 Eaet, 598. p. 324. 
 Leavenworth, etc., B. Co. ». Maris, 16 
 
 Kan. 333. p. 225. 
 Lebanon v. Heath, 47 N. H. 353. p. 287. 
 Lecky v. McDermott, 8 Serg. & E. 500. 
 
 p. 238. 
 Le Conteur v, London, etc., K. Co., L. B. 
 
 1 Q. B. 54. p. 221. 
 Lee V. Adsit, 37 N. Y. 87. p. 291. 
 Lee V. Kilburn, 3 Gray, 594. p. 304. 
 Lee V. Pain, 4 Hare, 251. p. 399. 
 Lee V. Salter, Lalor, 163. p, 215. 
 Lee !). Trustees of Flemingsburg, 7 Dana, 
 
 28. p. 244. 
 Lee V. Wallis, 1 Keny. Cas. 275. p. 463. 
 Lefevre v. Lefevre, 2 N. T. S. C. (T. & C.) 
 
 331; 59N. Y. 434. p. 398. 
 Leffingwell v. White, 1 Johns. Cas. 99. 
 
 p. 111. 
 Leftley v. Mills, 4 Term Eep. 170. p. 
 
 119. 
 Leggat V. Sa,nds Ale Brewing Co., 60 
 
 111. 158. p, 109. 
 Leggett V. Bank of Sing Sing, 24 N. Y. 
 
 283. p. 246. 
 Leggett V. Cooper, 2 Stark. N. P. 103. 
 
 p. 312. 
 Leggett V. Hyde, 58 N. Y. 272. p. 283. 
 Leggett V. Insurance Co., 10 Bich. L. 
 
 292. pp. 259, 260. 
 Legh V. Hewitt, 4 East, 154. pp. 30, 267. 
 Legrand v. Hampden College, 5 Munf. 
 
 324. p. 244. 
 Lehman v. Marshall, 47 Ala. 362. pp. 
 
 09, 460. 
 Leigh IK Mobile, etc., B. Co., 58 Ala. 165. 
 
 p. 383. 
 Leigh V. Smith, 1 Car. & P. 688. pp. 
 
 108, 215, 216, 217. 
 Leigh's Estate, In re, L. B. 6 Ch. Div. 
 
 256. p. 294. 
 Leland ». Douglass, 1 Wend, 490. p. 
 300. , . 
 
 Lemaster v. Burckhart, 2 Bibb, 25. p. 
 
 864. 
 Leonard «. Fpwler, 44 N. Y. 289. p. 303. 
 Leonard v. Peeples, 80 G-a. 61. p. 69. 
 Leppoc V. Bank, 32 Md. 136. p. 365. 
 Le Roy v. Johnson, 2 Pet. 200. p. 282. 
 Le Boy v. United States Ins. Co., 7 Johns. 
 
 343. p. 257. 
 Lethulier's Case, 2 Salk. 443. pp. 143, 
 
 403. 
 Leuckart v. Cooper, 3 Scolt, 521. p. 76. 
 Leuokart v. Cooper, 7 Car. &P. 119. pp. 
 
 27, 76. 
 Levy V. Bank of United States, 4 Dall. 
 
 234. p. 2U. 
 Levy V. National Bank, 7 Cent. L. J. 249. 
 
 p. 210. 
 Lewis V. Harris, 1 H. Black. 7. p. 269. 
 Lewis V. Lyman, 22 Pick. 437. p. 267. 
 Lawis V. Marshall, 7 .Man. &, G. 729. pp. 
 
 44, 99, 105, 236, 368. 
 Lewis V. Planters' Bank, 3 How. (Miss.) 
 
 267. p. 206. 
 Lewis V. Thatcher, 15 Mass. 488. pp. 
 
 258,439. 
 Lewis V. The Success, 18 La. An. L p. 
 
 45. 
 Lichtenhein v. Boston, etc., R. Co., 11 
 
 Cush. 70. p. 320. 
 Lickbarrow v. Mason, 2 Term Rep. 78. 
 
 pp. 20, 238. 
 Liedemann v. Schultz, 14 C; B. 38. p. 
 
 411. 
 Lime Rock Bank v. Hewett, 52 Me. 51. 
 
 p. 58. 
 Lime Rock Bank c. Plimpton, 17 Pick. 
 
 159. p. 292. 
 Lincoln, etc., Bank v. Page, 6 Am. Dec. 
 
 52 ; 9 Mass. 157. pp. 143, 205, 206. 
 Lindley V. Lacey, 17 C. B. (jr. s.) 558. p. 
 
 364. 
 Linn v. Naglee, 4 Whart. 92. p. 82. 
 Linnell v. Sutherland, 11 Wend. 568. pp. 
 
 82, 84. 
 Linsley v. Lovely, 26 Vt. 123. pp. 33, 
 
 378. 
 Lintner v. Milliken, 47 111. 178, p. 283. 
 Liotard ». Graves, 3 Caines, 216. pp, 52, 
 
 317. 
 Little V. Newton,,2 ■'Scott N. B. 509. p. 
 
 288. 
 
xlvi 
 
 TABLE OV CASKS CITED. 
 
 Littlefieia v. Maxwell, 31 Me. 135. p. 
 
 831. 
 Livermore v. Blood, 40 Mo. 48. p. 214. 
 Livingston v. Ten Broeck, 16 Johns. 14; 
 
 7 Am. Dec. 287. p. 888. 
 Livingston v. Arnoux, 66 N. Y. 518. p. 
 
 82. 
 Livingston v, Maryland Ins. Co., 7 Crancb, 
 
 506. pp. 102, 258. 
 Livingston v. Pittsburg, etc., B. Co., 2 
 
 Grant Cas. 219. p. 281. 
 Lloyd V. Colston, 5 Bush, 587. p. 295. 
 Lloyd V. Gilbert, 26 L. J. (Q. B.) 74. p. 
 
 287. 
 Lloyd V. Jones, 12 Jur. 667 ; 17 L. J. (C. 
 
 P.) 206; 6 C. B. 81. pp. 81, 381, 882. 
 Locke's Appeal, 72 Pa. St. 491. p. 288. 
 Lookett V. Nicklin, 2 Exoh. 93. p. 461. 
 Lockhart v, Dewees, 1 Texas, 685. pp. 
 
 466, 473. 
 Lockridge v. Wilson, 7 Mo. 660. p. 282. 
 Lockwood V. Mechanics' National Bank, 
 
 9B. L308. .p. 247. 
 Lodwicks V. Ohio Ins. Co., 6 Ohio, 486. 
 
 p. 319. 
 Logan V. Sumter, 28 Ga. 242. p. 468. 
 Lombardo v. Case, 46 Barb. 95. p. 447. 
 London, etc., B. Co. v. Winter, 1 Cr. & 
 
 Ph. 57. p. 244. 
 London, etc., Soc. v. Hagerstown, etc., 
 
 Bank, 36 Pa. St. 498. p. 281. 
 Lonergan i. Courtney, 76 111. 680. p. 
 
 448. 
 Lonergan v. Stewart, 65 111. 44. p. 47. 
 Long V. Allen, Park. 890. p. 248. 
 Longmer v. Smith, 1 Barn. & Cress. 1; 
 
 2 Dow. & By. 23. p. 808. 
 Loomis V. Marshall, 12 Conn. 70. p. 283. 
 Loomis V. Simpson, 13 Iowa, 682. p. 288. 
 Lord V. Burbank, 18 Me. 178. p. 38. 
 Lord V. Grow, 39 Pa. St. 88. p. 306. 
 Lord Abinger u. Ashton, L. B. 17 Eq. 
 
 358. p. 369. 
 Lord Lovelace's Case, W. Jones, 270. p. 
 
 457. 
 Loring v. Gurney, 5 Pick. 16. p. 62. 
 Loud V. Hall, 106 Mass. 404. p. 297. 
 Lounsbeiry v. Protection Ins. Co., 8 
 
 Conn. 469. p. 269. 
 Ix)ve V. Hinckley, Abb. Adm. 486. pp. 
 
 458, 462. 
 
 Love V. Oldham, 22 Ind. 61. p. 311. 
 Loveland v. Burke, 120 Mass. 189. pp. 
 
 231, 821. 
 Lowe u. Lehman, 15 Ohio St. 179. pp. 
 
 53, 64, 112, 391. 
 Lowry v. Adams, 22 Vt. 160. p. 364. 
 Lowry ». Brooks, 2 McCord, 421. p. 
 
 283. 
 Lowry v. Bussell, 8 Pick. '360. p. 254. 
 Lucas V. Bristo-w, EL Bl. & El. 907. p. 
 
 379. 
 Lucas V. Qroning, 7 I'aun, 164. p. 377. 
 Lucas V. Nookells, 4 Bing. 729. p. 241. 
 Lucas V. Worswick, 1 Moo. & B. 293. 
 
 p. 468. 
 Luce V. Dorchester Ins. Co., 105 Mass. 
 
 899. p. 65. 
 Lucy Annie (The), 13 Law Eep. {s. s.) 
 
 545. p. 458. 
 Lufkin V. Haskell, 8 Pick. 356. p. 77. 
 Lull V. Cass, 43 N. H. 62. p. 866. 
 Lupin 0. Marie, 6 Wend. 77. p. 814 
 Lynch v. Pallon, 11 B. L 811. p. 295. 
 Lynes v. The State, 46 Ga. 208. pp. 104, 
 
 383. 
 Lyon V. Culbertson, 5 Cent. L. J. 401. 
 
 p. 47. 
 Lyon V. George, 44 Md. 295. pp. 53, 64, 
 
 278. 
 Lyon o. Jerome, 26 Wend. 485. p. 288. 
 Lyon V. Valentine, 33 Barb. 271. p. 294. 
 Lyons v. Depass, 8 Per. & Dav. 177. p. 
 
 17. 
 Lyons v. Green Bay, etc, E. Co., 42 Wis. 
 
 648. p. 880. 
 
 Macdonald u, Longbottom, 1 £1. & Bl. 
 
 975. p. 378. 
 Mackay v. Dillinger, 73 Pa. St. 86. p. 
 
 290. 
 Mackenzie v. Dunlop, 8 Macq. H. L. Cm. 
 
 26. p. 878. 
 Mackenzie v. Schmidt, 22 Am. 1x Beg. 
 
 448. p. 435. 
 Macklin v. New Jersey Steamboat Co., 
 
 7 Abb. Pr. (jf. s.) 229. p. 72. 
 Macomber v. Howard Ins. Co., 7 Gray, 
 
 267. p. 260. 
 Macomber v. Parker, 13 Pick. 182. p. 
 
 486. 
 Macus V. Henderson, 1 East, 837. p. 290. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Hacy V. Whaling Ins. Co., 9 Meto. 354. 
 
 pp. 23, 68, 401. 
 Magee v. Atkinson, 2 Mee. & W. 440. 
 
 pp. 302, 845, 481, 484. 
 Magee v. Billingsley, 8 Ala. 619. p. 808. 
 Maghee v. Camden, etc., B. Co., 45 N. Y. 
 
 514. p. 229. 
 Magill V. Brown, Bright. ^Ift. p. 20. 
 Magistrates of Dunbar v. Dachess of 
 
 Roxburgh, 8 01. & Fin...«a5. p. 462. 
 Magruder v. Oage, 83 Mi. 344. p. 314. 
 Magrath v. Hardy, 6 Scott^ 627. p. 17. 
 Maguire v. Woodsjde, 2 Hilt. 59. p. 435. 
 Mahaiwe Bttnk ti. Douglass, 31 Conn. 170. 
 
 p. 212. 
 Mahoney v. Kekuhe, 14 C. B. 390. p. 
 
 301. 
 Main o. Eagle, 1 E. D. Smith, 619. pp. 
 
 108, 294, 
 Mair v. Olennie, 4 Mau. & Sel. 240. p. 
 
 283. 
 Mallan ». May, 13 Mee. & W. 511. pp. 
 
 404, 405. 
 Mallett V. Unole Sam, etc, Co., 1 Nev. 
 
 188. p. 390. 
 Malpas V. London, etc., R. Co., L. B. 1 C. 
 
 P. 336. p.364. ' 
 Maltby v. Railroad Co., 16 Md. 422. p. 
 
 281. 
 Manby d. Long, 3 Lev. 107. p. 243. 
 Manchester v. Burns, 46 N. H. 482. p. 
 
 468. 
 Manfiel'd v. Maitland, 4 Barn. & Aid. 582. 
 
 p. 237. 
 Mangum v. Ball, 43 Miss. 288. p. 292. 
 Mangum v. Farrington, 1 Daly, 236. p. 
 
 267. 
 Manhattan Co. v. Lydig, 4 Johns. 377. 
 
 p. 206. 
 Mansfield v. Inhabitants, 15 Gray, 149. 
 
 p. 460. 
 Mansfield v. Trigg, 113 Mass. 350. p, 
 
 311. 
 Marc V. Kupfer, 34 111. 286. p. 450. 
 Marhan v. Elliott, Hume, 393. p. 54, 
 Marine Bank v. Bimey, 28 111. 90, pp, 
 
 211,458. 
 Marine Banks. Chandler, 27 El. 526. pp, 
 
 474,484. 
 Marine Bank v. Ogden, 29 HI. 248. pp. 
 210, 468, 
 
 Marine Bank v. Kushmore, 28 111. 463. 
 
 pp. 210, 458. 
 Marine Bank of Chicago ii. Chandler, 27 
 
 111.526. p. 210. 
 Market Bank v. Hartshorne, 8 Keyes, 187. 
 
 p. 213. 
 Markham v. Jaudon, 41 N. Y. 235, pp 
 
 310, 483. 
 Markle «. Hatfield, 2 Johns. 462. p. 211. 
 Marks v, Cass Elevator Co., 48 Iowa, 146. 
 
 p. 452. 
 Marlatt v. Clary, 20 Ark. 251. p. 45. 
 Marquand v. New York Man. Co., 17 
 
 Johns. 525. p. 283. 
 Marquis of Salisbury d. Gladstone, 9 H, 
 
 L. Cas. 692. pp. 17, 31, 65. 
 MarrettB. Brackett, 60 Me. 524. p. 207. 
 Marsdeii v. Reid,'8 East, 5T7. p. 254. 
 Marsh v. Colby, 89 Mich. 626. pp. 96, 
 
 332. 
 Marsh b. Frazer, 47 Wis. 149. p, 817. 
 Marsh v. Jelf, 3 Fost. & Fin. 234. p. 45. 
 Marsh v. Marshall, 53 Pa. St. 396. p. 214. 
 Marshall v. American Express Co., 7 
 
 Wis. }. pp. 96, 282, 233. 
 Marshall v. Parsons, 9 Car. & P. 656. p. 
 
 294. 
 Marshall «. Perry, 67 Me. 78. p. 818. 
 Marston v. Bank of Mobile, 10 Ala. 284. 
 
 p. 98. 
 Martin ». Bank of United States, 4 Wash. 
 
 O. Ct. 253. p. 212. 
 Martin v, Clarke, 8 E. I. 389. p. 865. 
 Martin v. Gilham, 7 Ad. & E. 640. p. 
 
 267. 
 Martin v. Hall, 26 Mo. 386. p. 45. 
 Martin v. Hilton, 9 Mete. 371. pp. 277, 
 
 405. 
 Martin v. Maynard, 16 N. H. 165. p. 45. 
 Martin v. Solombo, etc.. Mining Co., 26i 
 
 Cal. 527. p. 390. 
 Martin v. Thrasher, 40 Vt. 460. p. 393. 
 Martin «. Union Pacific B. Co., 1 Wy.. 
 
 Ter. 143. p. 438. 
 Martineau v. fetching, L. B. 7 Q. B. 436.. 
 
 p. 815. 
 Martini v. Coles, 1 Haa. & Sel. 140. p.. 
 
 290. 
 Martyn v. Clue, 18 Q. B. 661. p. 270. 
 Martyn v. Gray, 14 C. B. (n. b.) 8124. p.. 
 284. 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Martyr v. Bradley, 9 Bing. 24. p. 272. 
 Marvin ». Buchanan, 62 Barb. 468. p. 
 
 294. 
 Mary Washington (The) v. Ayres, 5 Am. 
 
 L. Reg. (n. s.) 692. p. 227. 
 Marye v. Strouse. p. 50. 
 Maryland Fire Ins. Co. v. Whiteford, 81 
 
 Md. 219. p. 108. 
 Masbiter v. BuUer, 1 Camp. 84. p. 237. 
 Mason v. Bauman, 62 III. 76. p. 294. 
 Mason v. Bowles, 117 Mass. 86. p. 330. 
 Mason v. Chappell, 15 Gratt. 572. p. 309. 
 Mason v. Franklin Ins. Co., 12 Gill & J. 
 
 468. p. 107. 
 Mason v. Moyers, 2 Eob. (Va.) 606. p. 
 
 269. 
 Mason v. Potter, 26 Vt. 722. p. 283. 
 Mason i;. Skurray, Park on Ins. 245. p. 
 
 401. 
 Massachusetts Iron Co. v. Hooper, 7 Cush. 
 
 183. p. 246. 
 Massey v. Banner, 1 Jac. & W. 241. p. 
 
 284. 
 Massey v. Davis, 2 Ves. jr. 317. p. 294. 
 Master Pilots, etc., a. Bradley, 2 El. & Bl. 
 
 428. p. 26. 
 Master, etc., of St. Cross v. Lord Howard 
 
 de Walden, 6 Term Rep. 338. pp. 337, 
 
 454. 
 Mastin v. Delaware Ins. Co., 2 Wash. C. 
 
 Ct.254. p. 42. 
 Mathes v. Robinson, 8 Mete. 269. p. 84. 
 Matthews, Ex parte, 3 Ves. & Bea. 125. 
 
 p. 284. 
 Maury v. Beekman, 9 Paige, 188. p. 453. 
 Maury », Talmadge, 2 McLean, 167. p. 
 
 328. 
 Maverick (The), 1 Sprague, 23. p. 71. 
 Maxted v. Paine, L. R. 4 Bxch. 210. pp. 
 
 69, 288. 
 Maxwell v. Dulwich Hospital, 4 L. J. 
 
 (Ch.) 131. p. 244. 
 Maxwell v. Eason, 1 Stew. 514. p. 323. 
 May V. Buckeye Ins. Co., 25 Wis. 291. 
 
 p. 268. 
 Mayell o. Potter, 2 Johns. Oas. 371. p. 
 
 236. 
 Mayhew v. Spper, 10 Gill & J. 366. p. 
 
 833. 
 Mayor ». Hamilton Fire Ins. Co., 10 Boaw. 
 
 637. p. 258. 
 
 Mayor v. Horner, Cowp. 102. p. 148; 
 Mayor v. Long, 1 Camp. 21. p. 462. 
 Mayor of Linn Regis v. Taylor, 3 Lev. 
 
 160. p. 15. 
 Mayor of Thetford's Case, 1 Salk. 191 ; 3 
 
 Salk. 103. p. 244. 
 Mayor of Winton v. Wilks, 11 Modern, 
 
 48. p. 67. 
 Mead i-..Engs, 5 Cow. 303. p. 209. 
 Mead v. North- Western Ins. Co., 7 N. Y. 
 
 530. p. 406. 
 Meade v. Beale, Taney's Dec. 339. p. 
 
 103. 
 Meads / . Merchants' Bank, 25 N. Y. 143. 
 
 p. 205. 
 Meaher r. Lufkin, 21 Texas, 383. p. 466. 
 Mears v. Waples, 3 Houst. 581. pp. 30, 
 
 107. 
 Mears v. Waples, 4 Houat. 62. p. 104. 
 Mechanics' Bank v. Foster, 44 Barb. 87. 
 
 p. 280. 
 Mechanics' Bank v. Merchants' Bank, 45 
 
 Mo. 613. p. 246. 
 Mechanics', etc.. Bank v. Smith, 19 Johns. 
 
 115. p. 468. 
 Meech v. Smith, 7 Wend. 316. pp. 52, 
 
 318. 
 Meighen v. Bank, 25 Pa. St. 288. p. 80. 
 Meigs V. Mutual Marine Ins. Co., 2 Cush. 
 
 439. p. 108. 
 Meldrum v. Snow, 9 Pick. 441. p. 315, 
 Mellish V. Andrews, 2 Mau. & Sel. 26. p. 
 
 264. 
 Mellish V. Motteux, Peake N. P. 115. 
 
 pp. 187, 188. 
 Melvin v. Leayoraft, 17 Wend. 169. p. 
 
 200. 
 Memphis R. Co. v. HoUoway, 4 Law & 
 
 Eq. Rep. 426. p. 72. 
 Menzies v. Lightfoot, 40 L. J. (Ch.) 661 ; 
 
 L. B. 11 Eq. 459. pp. 56, 367, 473. 
 Mercantile Ins. Co. v. State Ins. Co., 25 
 
 Barb. 819. p. 436. 
 Merchant Tailors' Co. </. Truscott, 11 
 
 Exch. 865. p. 17. 
 Merchants' Bank v. Central Bank, 1 Ga. 
 
 418. p. 246. 
 Merchants' Bank v. State Bank, 10 Wall. 
 
 604. p. 205. 
 Merchants' Despatch Co. v. Hallock, 64 
 
 111.284. p. 226. 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Merchants' Ins. Co. v. Shillito, 15 Ohio 
 
 St. 559. p. 221. 
 Merchants' Mutual Ins. Co. v. Wilson, 2 
 
 Md.217. pp. 96,257. 
 Merchants', etc., Transp. Co. ». Associated 
 
 Firemen's Ins. Co., 11 Cent. L. J. 328. 
 
 p. 248. 
 Merchants', etc., Transp. Co. v. Story, 50 
 
 Md.5. p. 328. 
 Meres v. Ansell, 3 "Wila. 275. p. 364. 
 Meriam u. Harsen, 2 Barb. Ch. 232. p. 
 
 462. 
 Merriam v. Hartford, etc., R. Co., 20 Conn. 
 
 354. pp. 216, 217. 
 Merrick v. Butler, 2 Lans. 103. p. 214. 
 Merriok ». MoNally, 26 Mich. 374. p. 
 
 377. 
 Merrill v. Arey, 3 Ware, 215. p, 436. 
 Merrill v. Ithaca, etc., K. Co., 16 Wend. 
 
 586. p. 82. 
 Merry v. Prince, 2 Mass. 176. p. 265. 
 Merwin v. Butler, 17 Conn. 138. p. 215. 
 Metz V. Albrecht, 52 111. 491. p. 315. 
 Metcalf V. Weld, 14 Gray, 210. pp. 12, 
 
 37, 278. 
 Meymot, Ex parte, 1 Atk. 196. p. 148. 
 Michigan, etc, E. Co. v. Coleman, 28 
 . Mich. 440. p. 37. 
 ' Michigan State Bank v. Gardner, 15 
 
 Gray, 362. p. 290. 
 Middlesex Husbandmen v. Davis, 3 Mete. 
 
 133. p. 463. 
 Middlesex (The), 11 Law Bep. (n. s.) 114. 
 
 p. 71. ■ 
 Middleton v. Hayward, 2 Nott & M. 9. 
 
 p. 237. 
 Miles V. Cattle, 6 Bing. 743. p. 221. 
 Miletus (The), 5 Blatohf. 335. p. 436. 
 Millechamp v. Johnson, Willes, 205, p. 
 
 31. 
 Miller ». Burke, 68 N. Y. 615. p. 45. 
 Miller ». Eshbach, 43 Md. 1. p. 333. 
 Miller v. Grove, 18 Md. 242. p. 311. 
 Miller v. Hackley, 5 Johns. 383. p. 81. 
 Miller y. Insurance Co., 1 Abb. N. C. 470. 
 
 pp. 98, 112, 297. 
 Miller «. Jones, 66 Barb. 148. p. 315. 
 Miller w. Lea, 35 Md. 396. p. 292. 
 Miller v. Miller, 68 Pa. St. 486. p. 365. 
 Miller v. Pendleton. 8 Gray, 547. p. 328. 
 Miller v. Stevens, 100 Mass. 518. p. 375. 
 
 Miller v. Tetherington, 6 Hurl. & N. 278. 
 
 p. 255. 
 Miller i-. Travers, 8 Bing. 244. p. 102. 
 Miller v. Western Farmers', etc., Ins. Co., 
 
 1 Handy, 209. p. 263. 
 Millett V. Holt, 60 Me. 169. p. 468. 
 Mills V. Bank of United States, 11 Wheat. 
 
 431. pp. 53, 180, 207. 
 Mills V. Hallock, 2 Edw. Ch. 652. p. 100. 
 Mills V. Ushe, 16 Texas, 300. p. 45. 
 Milward v. Hibbert, 3 Q. B. 120. pp. l06, 
 
 221, 257. 
 Miner v. Bradley, 22 Pick. 457. p, 311. 
 Minnesota Central E. Co. ii. Morgan, 52 
 
 Barb. 217. pp. 295, 466, 479, 485. 
 Minter v. Pacific E. Co., 41 Mo. 503. p. 
 
 286. 
 Minturn v. Fisher, 4 Cal. 35.' p. 209. 
 Minturn v. Warren Ins. Co., 2 Allen, 86. 
 
 p. 237. 
 Mitchell J). Henry, 24 Sol. J, 689. p. 
 
 373. 
 Mitchell V. McDougal, 62 111. 498. p. 366. 
 Mitchell V. United States, 9 Pet. 711. p. 
 
 387. 
 Mixer ». Coburn, 11 Mete. 559. pp. 306, 
 
 375. 
 Mixer ». Cook, 31 Me. 340. p. 314. 
 Mixer's Case, 4 De G. & J. 589. p. 311. 
 Mobile Marine, etc, Ins.' Co. v. McMillan, 
 
 27 Ala. 77. p. 405. 
 Mobile, etc., R. Co. v. Jay, 61 Ala. 247. 
 
 p. 38. 
 Mohawk Bank v. Broderick, 18 Wend. 
 
 133. pp. 58, 209. 
 Mohawk (The), 8 Wall. 153. p. 238. 
 Mollett !). Eobinson, L. E. 5 C. P. 646. 
 ■ p. 298. ■ 
 
 Monroe v. Woodruff, 17 Md. 159. p. 333. 
 Montgomery v. Pickering, 116 Mass. 227. 
 
 p. 365. 
 Moody V. Roberts, 41 Miss. 74. p. 82. 
 Moody V. Surridge, Park on Ins. 245. p. 
 
 401. ' 
 Moon V. Guardians of the Poor, 3 Bing. 
 
 N. C.814. p. 289. 
 Moore v. Bank of the Metropolis, 18 Pet. 
 
 302. p. 286. 
 Moore ». Campbell, 10 Exch. 323. p. 877. 
 Moore v. Eason, 11 Ired. L. 568. p. 871. 
 Moore v. Mourgue, Cowp. 480. p. 285. 
 
TABLE OF CASES CITED. 
 
 Moore v. Morris, 20 111. 255. p. 450. 
 Moore v. Protection Ins. Co., 29 Me. 97. 
 
 p. 259. 
 Moore v. Smith, 19 Ala. 774. p. 283. 
 Moore v. Voughton, 1 Stark. N. P. 487. 
 
 p. 45. 
 Moran v. Prather, 23 Wall. 492. p. 868. 
 Moreau v. Dumagene, 20 La. An. 230. 
 
 p. 294. 
 Morewood v. "Wood, 4 Term Eep. 157. 
 
 p. 112. 
 Morgan v. Bank of North America, 11 
 
 Am. Dec. 582. p. 248. 
 Morgan v. Mason, 4 E. D. Smith, 636. 
 
 p. 293. 
 Morgan v. Richards, 1 Browne, 178. p. 
 
 390. 
 Morley v. Attenborough, 3 Exeh. 500. 
 
 p. 306. 
 Morris v. Allen, 14 N. J. Eq. 44. p. 
 
 317. 
 Morris v. Bowen, 52 N. H. 416. p. 286. 
 Morris v. Cleasby, 1 Mau. & Sel. 576. p. 
 
 292. 
 Morris v. Summerl, 2 Wash. 0. Ct. 203. 
 
 p. 291. 
 Morrison v. AUardyce, 2 Scotch Sess. Cas. 
 
 387. p. 54. 
 Morrison o. Bailey, 5 Ohio St. 13. pp. 
 
 208, 475, 484. 
 Morrison v. General Steam Nav. Co., 8 
 
 Bxoh. 733. p. 324. 
 Morrison v. Hart, 2 Bibb, 4. p. 109. 
 Morrison W.Thompson, L. K. 9 Q.B. 483. 
 
 pp. 294, 433. 
 Morse v. Braokett, 98 Mass. 205. pp. 311, 
 
 313. 
 Morse v. Congdon, 3 Mich. 549. p. 82. 
 Moses V. Boston, etc., B. Co., 82 N. H. 
 
 523. p. 225. 
 Moses V. Mead, 1 Denio, 378. pp. 306, 
 
 308. 
 Mpses V. Salt, 32 Beav. 269. p. 318. 
 Mosier v. Harmon, 29 Ohio St. 220. p. 
 
 453. 
 Motley V. Jones, 3 Ired. L. 144. p. 283. 
 Mott V. Hall, 41 Ga; 117. p. 287. 
 Molt V. Bichtmeyer, 57 N. Y. 49. p. 
 
 364. 
 Moule V. Brown, 4 Bing. N. C. 266. p. 
 
 209. 
 
 Mounsey».Ismay, 1 Hurl. & Colt 729; 9 
 
 Jut. (n. s.) 306; 32 L. J. (Bxoh.) 94; 
 
 11 Week. Eep. 270; 3 Hurl. & Colt. 
 
 486. p. 65. 
 Moxon V. Atkins, 3 Camp. 200. pp. 258, 
 
 404. 
 Meyer's Appeal, 77 Pa. St. 486. p. 330. 
 Muggleton v. Bamett, 2 Hurl. & N. 653. 
 
 pp. 17, 108. 
 Mumford v. Gething, 7 C. B. (n. s.) 305. 
 
 p. 397. 
 Muncey o. Dennis, 1 Hurl. & N. 216. p. 
 
 276. 
 Munn V. Burch, 25 HI. 35. p. 96. 
 Murdock v. Chenango County Ins. Co., 2 
 
 N. Y. 220. p. 151. 
 Murray ». East India Co., 5 Barn-. & Aid. 
 
 204. p. 244. 
 Murray v. Hatch, 6 Mass. 477. p. 251. 
 Murray v. Smith, 4 Daly, 277. p. 306. 
 Murray v. Spencer, 24 Md. 520. pp. 35, 
 
 386. 
 Murray ». Ware, 1 Bibb, 325. pp. 278, 
 
 317. 
 Mussey v. Eagle Bank, 9 Mete. 306. pp. 
 
 104, 108, 205. 
 Mutual Benefit Life Ins. Co. o. Ruse, 8 
 
 Ga. 584. p. 265. 
 Mutual Fire Ins. Co. v. Hand, 24 N. H. 
 
 428. p. 265. 
 Mutual Safety Ins. Co. v. Hone, 2 N. Y. 
 
 235. p. 265. 
 Muzzy V. Whitney, 10 Johns. 226. p. 283. 
 Myers v. Perry, 1 La. An. 373. p. 324. 
 Myers v. Sari, 30 L. J. (Q. B.) 9; 7 Jur, 
 
 (n. s.) 97. pp. 366, 368, 893. 
 Myers v. Walker, 24 HI. 133. pp. 374, 
 
 378. 
 Mynn v. Jolliffe, 1 Moo. & B. 826. p. 292. 
 
 McAllister v. Eeab, 4 Wend. 483. pp. 62, 
 
 817. 
 MoArthur v. Ladd, 5 Ohio, 431. p. 283. 
 McCall V. Sun Mutual Ins. Co., 66 N. Y. 
 
 505. p. 254. 
 McCarren ». McNi'.lty, 7 Gray, 189. p. 
 
 419. 
 McCarty v. New York, etc., E. Co., 30 
 
 Pa. St. 247. p. 225. 
 McGauley v. Cleveland, 21 Miss. 438. p. 
 
 283. 
 
TABLE OF CASES CITED. 
 
 McOlay v. Harvey, 90 111. 52S. p. 8621 
 McClintoek «. Lary, 23- Ark. 215. p. 100. 
 McClure v. Cox, 32 Ala. 617. pp. 408, 
 
 436. 
 McCombie v. Davies, 6 Bast, 538. pp. 
 
 238, 286, 290. 
 McCoiarry v. Suydam, 10 N". J. L. 245. p. 
 
 466. 
 McCready i*. Wright, 6 Duer, 571. p. 
 
 109. 
 McCuUoch V. Eagle Ins. Co., 1 Pick. 280. 
 
 p. 82. 
 MoCulloch V. Scott, 13 B. Mon. 172. p 
 
 311. 
 McCuUough V. Talladega Ins. Co., 46 Ala. 
 
 376. p. 245. 
 McCune o. Burlington, etc., E. Co. (Sup. 
 
 Ct. Iowa), p. 460. 
 McDowell V. Bank, 1 Harr. (Del.) 27. p. 
 
 246. 
 McDowell V. IngersoU, 5 Serg. & E. 101. 
 
 p. 45. 
 McParland ». Wheeler, 26 Wend. 467. p. 
 
 239. 
 McFerran v. Powers, 1 Serg. & K. 106. p. 
 
 462. 
 McGovem v. Heissenhuttel; 8 Ben. 46. 
 
 p. 436. 
 Mctrraw v. Sturgeon, 29 Mich. 426. p. 
 
 377. 
 McGregor v. Insurance Co., 1 Wash. C. 
 
 Ct. 39. pp.73, 440. 
 Mclver v. Humble, 16 East, 169. p. 284. 
 McKeen v, Delaney, 5 Cranch, 32. p. 
 
 462. 
 McKenzie v. Nevins, 8 Mass. 434. p. 802. 
 McKibben v. Bakers, 1 B. Mon. 122. p. 
 
 323. 
 McKihstry ■B.Pearsall, 3 Johns. 319. pp. 
 
 284, 387. 
 McKnight v. Dunlop, 4 Barb. 36. p. 317. 
 McLean v. Clark, 47 Ga. 24. p. 365. 
 McMasters B.Pennsylvania R. Co., 69 Pa. 
 
 St. 374. pp. 25, 37, 63, 67, 225, 226. 
 McMillan v. Michigan, etc.', B. Co., 16 
 
 Mich! 79. p. 242. 
 McMorris v. Simpson, 21 Wend. 610. p. 
 
 286. 
 McNamara v. Dratt, 33 Iowa, 385. p. 
 
 284. ' 
 McNeill V. Arnold, 17 Ark. 154. p. 97.' 
 
 McPherson v. Cheadel, 24 Wend. 15. p. 
 
 200. 
 McPherson v, Eathbone, 1 1 Wend. 96. p. 
 
 282. 
 
 Nailor v. Scott, 2 Ld. Raym. 1558. p. 172. 
 Narragansett Bank v. Atlantic Silk Co., 3 
 
 Mete. 282. p. 96. 
 Nash V. Mitchell, 3 Abb, N. C. 171. p. 
 
 330., 
 Natchez Ins. Co. v. Buokner, 4 How. 63. 
 
 p. 257. 
 Natchez Ins. Co. v. Stanton, 2 Smed. & 
 
 M. 340. p. 107. 
 National Bank v. Burkhardt, 100 U. S. 
 
 686. p. 45. 
 National Bank of America v. Bangs, 106 
 
 Mass. 441. p. 211. 
 National Gold & Trust Co. v. McDonald, 
 
 51 Cal. 64. p. 213. 
 National Park Bank v. Ninth National 
 
 Bank, 46 N. Y. 77. p. 211. 
 Naylor v. Fall Eiver Iron- Works, 118 
 
 Mass. 317. p. 278. 
 Naylor v. Semmes, 4 Gill & J. 273. p. 
 
 333. 
 Neiffer v. Bank, 1 Head, 162. p. 205. 
 Neill V. Billingsley, 49 Texas, 161. p 
 
 290. 
 Neilson v. Harford, 8 Mee. & W. 806. 
 
 p. 105. 
 Nelson v. Sun Mutual Ins. Co., 71 N. T. 
 
 453. p. -403. 
 Nevins v. Bay State Steamboat Co., 4 
 
 Bosw. 225. p. 231. 
 Newbold v. Wright, 4 Eawle, 195. pp. 
 
 30, 291. 
 Newburgh v. Newburgh, 5 Madd. 223. p 
 
 102. 
 Newoastle-on-Tyne v. Bradley, 2 El. & 
 
 Bl. 428. .J). 366. 
 Newell V. Griswold, 6 Johns. 44. p. 317. 
 New England Fire Ins. Co. v. Schettler, 
 
 38 111. 166. p. 245. 
 New England Marine Ins. Co. v. Chandler, 
 
 16 Mass. 275. p. 206. 
 New Jersey Steam Nav. Co. v. Merchants' 
 
 Bank, 6 How. 344. p. 215. 
 New Jersey Zinc Co. v. Boston Frank- 
 Unite Co., 15 N. J. Eq. 418. p. 388. 
 Newman v. Bean, 21 N. H. 93. p. 283. 
 
m 
 
 TABLB OP CASES CITED. 
 
 Newsom «. Thighen, 30 Miss. 414. p. 
 
 365. 
 Newson v. Thornton, 6 East, 17. p. 290. 
 New York v. Exchange Ins. Co., 9 Bosw. 
 
 424. p. 258. 
 New York Belting Co. b. Washington 
 
 Eire Ins. Co., 10 Bosw. 428. p. 407. 
 New York Firemen's Ins. Co. ». Ely, 2 
 
 Cow. 678. p. 458. 
 New York, etc., Ins. Co. v. New York 
 
 Fire Ins. Co., 17 Wend. 359. p. 265. 
 New York, etc., Ins, Co. o. Protection 
 
 Ins. Co., 1 Story, 458. p. 265. 
 Niagara Eire Ins. Co. v, De GraflF, 12 
 
 Mich. 124. p. 259. 
 Niagara County Bank ti. Baker, 15 Ohio 
 
 St, 68. p. 458. 
 NichoUs V. Webb, 8 Wheat. 326. p. 82. 
 Nichols V. De Wolf, 1 R I. 277. p. 108. 
 Nichols V. Haynes, 78 Pa. St. 174. p. 83. 
 Noble V. Durell, 3 Term Bep. 271. pp. 
 
 420, 454. 
 Noble V. Kennoway, 1 Doug. 510. pp. 
 
 29, 92, 94, 95, 108, 120, 143, 166, 251, 
 . 257. 
 
 Nobleboro v. Clark, 68 Me. 87. p. 286. 
 Nolte, Ex parte, 2 G-lyn & J. 295. p. 280. 
 Nonotuok Silk Co. v. Pair, 112 Mass. 354. 
 
 p. 58. 
 Norden Steamship Co. v. Dempsey, L, E. 
 
 1 C. P. Div. 654. p. 409.. 
 Norman v. Cole, 3 Esp. 253. p. 365. 
 Norman v. Morrill, 4 Ves. 760. p. 364. 
 Norment v. Hull, 1 Humph. 320. p. 283. 
 Norris' Appeal, 71 Pa. St. 106. , p. 294. 
 Northrop v. Graves, 19 Conn. 548. p. 
 
 468. 
 Norton v, Heywood, 20 Me. 359. p. 38. 
 Norton «. Young, 3 Me. 30. p. 311. 
 Norway Plains Co. v. Boston, etc, R. Co., 
 
 1 Gray, 263. p. 225. 
 Norway Plains Co. v, Bradley, 52 N. H. 
 
 110. p. 333. 
 Notara v. Henderson, L. B. 5 Q. B. 346. 
 
 p. 238. 
 Noyes v. Campbell, 29 Vt. 79. p. 408. 
 Nudd 1). Hobbs, 17 N. H. 525. p. 331. 
 Nutting V. Colt, 3 Halst. Ch. 589. p. 288. 
 
 O'Sannon v. Southern Express Co., 61 
 Ala. 481. pp. 216, 217. 
 
 Ober V. Carson, 62 Mo. 209. p. 314. 
 Ocean National Bank v, Oarll, 55 N. T. 
 
 440, p. 82. • 
 Oelricks v. Ford, 23 How. 49. pp. 32, 33, 
 
 40, 451. 
 Ogden V. Astor, 4 Sandf. 311. p. 283. 
 Ogden V. Parsons, 28 How. 167. p. 409. 
 Ogilvie V. Foljambe, 3 Mer. 53. p. 364. 
 Oland V. Burdwick, Cro. Eliz. 460; 5 
 
 Coke, 116. p. 173. 
 Oldershaw v. Knoles, 4 Bradw. 68 ; 6 
 
 Bradw. 325. p. 286. 
 O'Linda v. Lothrop, 21 Pick. 292. p. 331. 
 Olivari v. Menger, 39 Texas 76. p. 365. 
 Oliver v. Pratt, 3 How. 333. p. 294. 
 Ollivant v. Bayley, 5 Q. B. 288. p. 309. 
 Olmstead v. Hill, 2 Ark. 346. p. 283. 
 Oneida Man. Co. v. Lawrence, 4 Cow. 
 
 440. pp. 308, 382. 
 O'Niel 0. Buffalo Ins. Co., 3 N. Y. 122. 
 
 p. 262. 
 Ontario Bank«. Hennessey, 48 N. Y. 545. 
 
 p. 282. 
 Oppenheim v, Russell, 3 Bos. & Pul. 45. 
 
 p. 136. 
 Orange Bank v. Brown, 3 Wend. 161. p. 
 
 136. 
 Orange County Bank^a, Brown, 9 Wend, 
 
 85. p. 221. 
 Oreamuno v. Uncle Sam., etc., Co., 1 
 
 Nev. 215. p. 390. 
 Ormrod o. Huth, 14 Mee. & W. 663. p. 
 
 308. 
 Osborn v. Gantz, 60 N. Y. 540. pp. 309, 
 
 314. 
 Osborn v. United States Bank, 9 Wheat. 
 
 738. p. 244. 
 Osgood !!. Jones, 23 Me. 312. p. 468. 
 Osgood V. McConnell, 32 111. 74. p. 450. 
 Ostrander v. Brown, 15 Johns. 39. pp. 
 
 135, 136, 137, 144. 
 Otsego County Bank v. Warren, 18 Barb. 
 
 290. p. 455. 
 Otts V. Alderson, 10 Smed. & M. 476. 
 
 pp. 306, 308. 
 Ougier v. Jennings, 1 Camp. 505. pp. 
 
 143, 254, 257. 
 Ouimit V. Henshaw, 85 Vt. 605. p. 215. 
 Cutwater v. Nelson, 20 Barb. 29. p. 378. 
 Overman v. Hoboken City Bank, 30 N. 
 
 J. L. 61. pp. 58, 207. 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Overseers ». Overseers, 3 Serg. & R. 117. 
 
 p. 244. 
 Oxendale v. Wetnerell, 9 Barn. & Cress. 
 
 386. p. 312. 
 
 Pacific Iron- Works v. Newhall, 84 Conn. 
 
 67. p. 309. 
 Pacifi (The), 1 Deady, 71. pp. 242, 465. 
 Packard v. Barle, 118 Mass. 280. pp. 232, 
 
 236. 
 Packard v. Getman, 6 Cow, 767. pp. 108, 
 
 216, 217, 218, 225. 
 Packer v. Heaton, 9 Cal. 568. p. 390. 
 Paddock v. Forrester, 3 Man. & Gr. 903 ; 
 
 8 Scott N.B. 715. p. 112. 
 Paddock v. Pradley, 1 Cromp. & J. 90. 
 
 p. 364. ' 
 
 Padelford ». Providence, etc., Ins. Co., 3 
 
 E, L 102. p. 262. 
 Page V. Cole, 120 Mass. 37. p. 373. 
 Pahlman v. Taylor, 76 111. 629. p. 280. 
 Paice V. Walker, L. E. 5 Exch. 173. p. 
 
 301. 
 Palm V. Medina Ins. Co., 20 Ohio, 537. 
 
 p. 244. 
 Palmer v. Blackburn, 1 Bing. 61. p. 415. 
 Palmer v. Clark, 106 Mass. 378. p. 453. 
 Palmer v. Pinkham, 33 Me. 32. p. 284. 
 Palmer v. State Bank, 16 Iowa, 321. p. 
 
 386. 
 Palmer v. Stockwell, 9 Gray, 237. p. 317. 
 Palmer v. Yates, 3 Sandf. 137. p. 205. 
 Paragon (The), Ware, 322. p. 221. 
 Park V. Miller, 27 N. J. L. 338. p. 81. 
 Park V. Piedmont, etc., Ins. Co., 48 Ga. 
 
 601. pp. 103, 296. 
 Parker v. Barker, 1 Brod. & B. 9. p. 284. 
 Parker v. Gordon, 7 East, 385. p. 96. 
 Parker v. Ibbetson, 4 C. B. {n. a.) 346. 
 
 pp. 105, 394. 
 Parker v. Palmer, 4 Bam. & Aid. 387. 
 
 p. 308. 
 Parkhurst v. Gloucester, etc., Ins. Co., 
 
 100 Mass. 301. p. 107. 
 Parkin v. Kadcliffe, 1 Bos. & Pul. 282. 
 
 p. 36. 
 Parkinson o. Collier, Park on Ins. 416 ; 
 
 1 Ph. on Ev. 539. p. 414. 
 Parkinson v. Lee, 2 Bast, 314. pp. 187, 
 
 308. 
 Parsons v. Martin, 11 Gray, 112. p. 299. 
 
 Parsons v. Miller, 15 Wend. 562. pp. 
 
 388, 435. 
 Parrott v. Thacher, 9 Pick. 426. pp.85, 98. 
 Partridge ». Forsyth, 29 Ala. 20p. pp. 
 
 98, 279. 
 Partridge v. Insurance Co., 15 Wall. 573. 
 
 pp. 23, 296, 434, 445. 
 Patten v. Patten, 75 111. 446. p. 330. 
 Patterson v. Black, 5 Upper Canada Q. B. 
 
 481. p. 221. 
 Patterson v. Franklin Ins. Co., 22 Pittsb. 
 
 L. J. 201. p. 45. 
 Patterson v. Tash, 2 Stra. 1178. pp. 286, 
 
 290, 291. 
 Patton V. Magrath, Dudley (S. C), 159. 
 
 p. 242. 
 Patton V. State Bank, 2 Nott & M. 464. 
 
 p. 212. , 
 
 Patriotic Bank v. Farmers' Bank, 2 
 
 Cranch C. Ct. 560. p. 207. 
 Paul V. Eeed, 52 N. H. 136. p. 314. 
 Pavey v. Burch, 3 Mo. 314. p. 443. 
 Paxton V. Courtnay, 2 Fost. & Fin. 131. 
 
 p.' 11. 
 Paxton V. Popham, 9 Bast, 421. p. 365. 
 Pearson v. Grice, 8 Fla. 214. p. 317. 
 Peek V. North Staffordshire, etc., B. Co., 
 
 10 H. L. Cas. 473. p. 408. 
 Peers v. Davis, 29 Mo. 184. p. 364. 
 Peet V. Chicago, etc., E. Co., 20 Wis. 594. 
 
 p. 72. 
 Peisch V. Dickson, 1 Mason, 11. p. 409. 
 Pelly o. Eoyal Exchange Assur. Co., 1 
 
 Burr. 341. pp. 257, 414. 
 Pelty 0. Gale, 25 Ala. 473. p. 279. 
 Penn v. Kearney, 21 La. An. 21. p. 284. 
 Pennell v. Alexander, 8 El. & Bl. 283. 
 
 p. 344. 
 Pennsylvania Canal Co. v. Betts, 1 W. 
 
 N. C. 328. p. 364. 
 Pennsylvania Coal Co. v. Sanderson (Sup. 
 
 Ct. Pa., May, 1880). pp. 77, 460. 
 Pennsylvania Co. v. Hankey, 10 Cent. L. 
 
 J. 337. p. 327. 
 Penny, In re, 14 La. An. 194. p. 315. 
 People (The) v. Crockett, 9 Cal. 112. p 
 
 246. 
 People (The) u. Haines, 14 Wend. 546. 
 
 p. 814.- 
 People (The) v. Superior Court of New 
 
 York, 20 Wend. 663. p. 200. 
 
liv 
 
 TABLE OF CASES CITED. 
 
 People's Bank v. Bogart, 16 Hun, 270. 
 
 p. 306. 
 People's Ins. Go. v. Kuhn, 1 Cent. L. J. 
 
 214. p. 259. 
 Peppin V. Shakespear, 6 Term Bep. 748. 
 
 p. 32. 
 Peroival v. Maine Mutual Ins. Co., 38 
 
 Me. 242. p. 406. 
 Perkins v. Cutters' Co., 1 Selw. N. P. 
 
 1144. p. 463. 
 Perkins v. Franklin Bank, 21 Pick. 483. 
 
 p. 460. 
 Perkins ». Jordan, 35 Me. 23. pp. 41, 
 
 276. 
 Perkins v. Young, 16 Gray, 889. p. 364. 
 Perley v. Balch, 23 Pick. 286. p. 311. 
 Parley v. Langley, 7 N. H. 238. p. 831. 
 Perpetual Ins. Co. v. Goodfellow, 9 Mo. 
 
 149. p. 246. 
 Perry v. Thompson, 98 Mass. 249. p. 243. 
 Peter v. Kendall, 6 Barn. & Cress. 708. 
 
 p. 112. 
 Peters v. Powler, 41 Barb. 467. p. 330. 
 Peters v. Goooh, 4 Blaokf. 515. p. 311. 
 Peters v. Stavely, 15 L. T. (n. s.) 151. p. 
 
 441. 
 Petrie o. Wright, 6 Smed. & M. 647. p. 
 
 244. 
 Petrochino v. Bott, L. E. 9 C. P. 356. p. 
 
 225. 
 Pfeil W.Kemper, 8 Wis. 818. p. 100. 
 Phelps V. Qainn, 1 Bush, 375. p. 311. 
 Phelps V, Williamson, 5 Sandf. 578. p. 
 
 237. 
 Philadelphia v. Presbyterian Board, 29 
 
 Leg. Int. 53. p. 331. 
 Philadelphia, etc., K. Co. v. Northam, 2 
 
 Ben. 1. p. 409. 
 Philips V. Wheeler, 10 Texas, 536. p. 32. 
 Phillipi V. Gove, 4 Kob. (La.) 815. p. 808. 
 Phillips V. Briard, 1 Hurl'. & N. 21. pp. 
 
 409, 488. 
 Phillips V. Headlam, 2 Barn. & Adol. 880. 
 
 p. 267. 
 Phillips V. Inues, 4 CI. & Pin. 284. p. 
 
 460. 
 Phillips V. Starr, 26 Iowa, 349. p. 442, 
 Phipps V. Millbury Bank, 8 Mete. 79. p. 
 
 209. 
 Phoenix Ins. Co. v. Taylor, 6 Minn. 492. 
 
 p. 260. 
 
 Phoenix Mutual Ins. Co. v. Batohen, 6 
 
 Bradw. 6tl. p. 315. 
 Pickering v. Barkley, 1 Sty. 132. p. 125. 
 Pickering v. Busk, 15 East, 44. pp. 288, 
 
 284, 286, 291, 292. 
 Pickering o. Demerritt, 100 Mass. 421. 
 
 pp. 75, 298. 
 Pickering v. Dowson, 4 Taun. 779. p. 
 
 188. 
 Pidgeon v. Burslem, 3 Exch, 465. p. 288. 
 Pierce v. Butler, 14 Mass. 803. pp. 53, 
 
 206. 
 Pierce «. United States, 1 Ct of 01. 290. 
 
 p. 74. 
 Pierce v. Whitney, 29 Me. 188. p. 45. 
 Pierce «. Woodward, 6 Pick. 206. p. 
 
 365. 
 Pierpont v. Powle, 2 Woodb. & M 23. 
 
 p. 46. 
 Piper V. Chappell, 14 Mee. & W. 624. 
 
 p. 17. 
 Pinckney v. Hagadorn, 1 Duer, 89. p. 
 
 292. ' 
 
 Pindar v. Continental Ins. Co., 38 N. T. 
 
 364. p. 259. 
 Pindar v. Kings County Ins. Co., 36 N. 
 
 Y. 648. pp. 259, 260. 
 Pindar v. Resolute Ins. Co., 47 N. T. 114. 
 
 p. 259. 
 Pinney v. Wells, 10 Conn. 104. p. 241. 
 Pino V. Mercantile Mutual Ins. Co., 19 
 
 La. An. 214. p. 266. 
 Pintard v. Martin, 1 Smed. & M. Ch. 126. 
 
 p. 311. 
 Piscataqua Exchange Bank o. Carter, 20 
 
 N. H. 246. p. 208. 
 Pitcher v. Barrows, 17 Pick. 361. p. 282. 
 Pitman o. Hooper, 8 Sumn. 66. p. 287. 
 Pitre V. Offutt, 21 La. An. 679. pp. 45, 
 
 242. 
 Pitts V. Owen, 9 Wis. 162. p. 814. 
 Pittsburg ti. O'Neil, 1 Pa. St. 843. pp. 
 
 53, 98, 391. 
 Pittsburg Ins. Co. v. Dravo, 2 W. N. 0. 
 
 194. p. 261. 
 Pittsburg, etc., R. Co. v. Nash, 43 Ind. 
 
 423. p. 231. 
 Plaice a. AUcook, 4 Post & Fin. 1074. 
 
 p. 106. 
 Planters' Bank v. Farmers', etc., Bank, 8 
 
 Gill & J. 449. p. 97. 
 
TABLE OF OASES CITED. 
 
 Iv 
 
 Planters' Bank o. Markham, 5 How. 
 
 (Miss.) 397. p. 206. 
 Piatt B. Hibbard, 7 Cow. 497. p. 135. 
 Player v. Jones, 1 Vent. 21. p. 463. 
 Player v. Vore, T. Kaym. 288. p. 463. 
 Pleasants u. Pendleton, 6 Band. 473 ; 18 
 
 Am. Dec. 726. p. 314. 
 Plummer v. Benthara, 1 Burr. 248. p. 
 
 17. 
 Poeock V. Hendricks, 8 Gill & J. 421. p. 
 
 81. 
 Pointdexter v. Cannon, 1 Dev. Eq. 373. 
 
 p. 364. 
 Polhemus v. Heiman, 45 Cal. 573. p. 306. 
 Polhemus v. Heiman, 50 Cal. 438. p. 451. 
 Polk ». Hill, 2 Overt. 157. p. 462. 
 Pollen V. Le Roy, 10 Bosw. 38 ; 30 N. Y. 
 
 549. p. 375. 
 Pollitt V. Long, 58 Barb. 20. p. 333. 
 Poole 1). Hill, 6 Mee. & W. 835. p. 270. 
 Pope V. Bank, 27 N. Y. 131. p. 205, 
 Pope V. Nickerson, 3 Story, 465. p. 238. 
 Port Carbon Iron Co. v. Groves, 68 Pa. 
 
 St. 149. p. 309. 
 Porter v. Chicago, etc., B. Co., 20 111.407. 
 
 P..225. 
 Porter v. Hill, 114 Mass. 106. p. 41. 
 Porter v. Judson, 1 Gray, 175. p. 82. 
 Porter v. MoClure, 15 Wend. 187. p. 
 
 283. 
 Porter v. Patterson, 15 Pa. St. 230. p. 
 
 445. 
 Portland v. Hill, L. E. 2 Eq. 765 ; 12 Jur. 
 (n. s.) 286; 15 Week. Bep. 38. p. 17. 
 Post V. Jones, 19 How. 150. p. 238. 
 Post fc. Kimberly, 9 Johns. 470. p. 284. 
 Potter V. Greene, 9 Gray, 309. p. 284. 
 Potter V. Morland, 3 Cush. 384. p. 287. 
 Potter V. Moses, 1 R. I. 430. p. 283. 
 Powell V. Bradlee, 9 Gill & J. 220. p. 
 
 104. 
 Powell V, Buck, 4 Strobh. 427. p. 238. 
 Powell V. Horton, 2 Bing. N. C. 668. pp. 
 
 309, 375. 
 Powell V. Myers, 26 Wend. 596. p. 136. 
 Powrell V. Eegina, 2 Bro. P. C. 298. p. 
 
 464. 
 Power V. Horton, 2 Hodge, 16. p. 101. 
 Power V. Kane, 5 Wis. 265. pp. 45, 293. 
 Powley i». Walker, 5 Term Rep. 378. p. 
 267. 
 
 Prather v. Boss, 17 Ind. 495. p. 388. 
 Prentiss v. Buss, 16 Me. 30. 365. 
 Presoott D. Hubbell, 1 McCord, 94. pp. 
 
 70, 192. 
 Preston v. Merceau, 2 W. Black. 1249.' 
 
 p. 364. 
 Preston v. Missouri, etc.. Lead Co., 51 
 
 Mo. 45. p. 246. 
 Prevost V. Gratz, 1 Pet. C. Ct. 864. ^. 
 
 294. 
 Price V. Alexander, 2 G. Greene, 427. 
 
 p. 283. 
 Price V. Earl of Torrington, 1 Salk. 285. 
 
 p. 82. 
 Price V. McConnico, 44 Ala. 627. p. 
 
 318. 
 Price V. Mouat, 11 C. B. (n. s.) 509. p. 
 
 397. 
 Price V. 3Srea;e, 5 Burr. 1355. p. 211. 
 Price V. Page, 4 Ves. 679. p. 102. 
 Price V. Powell, 3 N. Y. 322. p. 225. 
 Price V. White, 9 Ala. 563. p. 98. 
 Price V. Williams, 1 Mee. & W. 6. p. 
 
 270. 
 Prickett V. Downer, 4 Vt. 21. p. 225. 
 Priestley v. Pratt, L. R. 2 Exch. 101. 
 
 pp. 201, 315. 
 Prismall v. Lovegrove, 6 L. T. (n. s.) 329. 
 
 pp. 202, 204. 
 Promoter Life Ins. Co. i^. Barrie, 5 Murr. 
 
 135. p. 267. 
 Prossor v. Parks, 18 Cal. 47. p. 390. 
 Pugsley V. Murray, 4 E. D. Smith, 245. 
 
 pp. 295, 296. 
 Pulsifer v. Hotchkiss, 12 Conn. 240. p. 
 
 311. 
 Pultney v. Keymer, 3 Esp. 182. p. 290. 
 Pursell V. McQueen, 9 Ala.'380. p. 278. 
 Putnam v. Tillotson, 13 Mete. 517. p. 
 
 314. 
 Pyle V. Pennock, 2 Watts & S. 390. p. 
 271. 
 
 Quebec, etc., B. Co. v. Quinn, 12 Moo. P. 
 
 C.C. 265. p. 289. 
 Queen v. Inhabitants, 6 Q. B. 303. pp. 54, 
 
 394. 
 Queroz v. Truman, 3 Bam. & Cress. 342. 
 
 p. 290. 
 Quiggin V. Duff, 1 Mee. & W. 174. p. 
 
 225. 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 Quiiie V. Quine, 9 Smed. & M. 166. p. 
 288. 
 
 Baborg v. Bank of Columbia, 1 Har. & 
 
 Q. 231. p. 207. 
 Race V. Ward, 4 El. & Bl. 702. p. 331. 
 Rafert v. Scroggins, 40 Ind. 195. p. 435. 
 Raiferty v. New Brunswick Ins. Co., 8 
 
 Harr. (N. J.) 480. p. 259. 
 Railroad Co. v. Smith, 21 Wall. 262. p. 
 
 375. 
 Raisin v. Clark, 41 Md. 158 ; 20 Am. Rep. 
 
 66. pp. 76, 431, i<i% 479, 485. 
 Raitt V. Mitchell, 4 Camp. 145. p. 241. 
 Randall v. Kehlor, 60 Me. 37. pp. 284, 
 
 303. 
 Randall v. Botch, 12 Pick. 107. p. 441. 
 Randall ■». Smith, 63 Me. 105. pp. 72, 
 
 104. 
 Handle ». The State, 49 Ala. 14. p. 283. 
 Randolph v. Holden, 44 Iowa, 327. p. 
 
 441. 
 Randolph v. Ware, 8 Cranch, 503. p. 
 
 291. 
 Rankin v. American Ins. Co., 1 Hall, 619. 
 
 pp. 55, 73, 441. 
 Rann v. Home Ins. Co., 59 N. T. 387. p. 
 
 262. 
 Ransom v. Mack, 2 Hill, 587. p. 203. 
 Rapp V. Grayson, 2 Blackf. 130. p. 286. 
 Rapp V. Palmer, 8 Watts, 178. pp. 238, 
 
 465. 
 Rapp V. Sampson, 16 Gray, 398. pp. 295, 
 
 296. 
 Rawlins v. Rickards, 28 Beav. 370. p. 82. 
 Rawlinson v. Clarke, 15 Mee. & W. 292. 
 
 p. 283. 
 Rawls V. American, etc., Ins. Co., 27 N. 
 
 Y. 282. p. 267. 
 Rawson v. Holland, 59 N. T. 611. p. 
 
 242. 
 Raybum v. Day, 27 HI. 46. p. 52. 
 Raymond v. Isham, 8 Vt. 268. p. 817. 
 Reab v. McAllister, 8 Wend. 109. pp. 
 
 52, 818. 
 Read o. Rann, 10 Barn. & Cress. 488. p. 
 
 293. 
 Reade v. Sweetzer, 6 Abb. Pr. (n. s.) 9. 
 
 p. 277. 
 Beading v. Menham, 1 Moo. & R. 284. 
 
 p. 462. 
 
 Reber «. Machine Co., 12 Ohio St. 175. 
 
 p. 284. 
 Reed v. Richardson, 98 Mass. 214. pp. 
 
 71, 231, 466. 
 Reeside (The), 2 Sumn. 567. pp. 21, 28, 
 
 136, 436, 457. 
 Refining, etc., Co. ». Miller, 7 Phila. 97. 
 
 p. 314. 
 Eegina v. Hale, 1 Per. & Dav. 293; 9 
 
 Ad. & E. 339. p. 17. 
 Eeid V. Draper, 6 Hurl. & N. 813. p. 301. 
 Beid V. Rensselaer Glass Factory, 3 Cow. 
 
 387 ; 5 Cow. 587. pp. 200, 317. 
 Relief Fire Ins. Co. v. Shaw, 4 Otto, 574. 
 
 p. 82. 
 Remy v. Duffee, 4 Ala. 865. p. 816. 
 Renard v. Turner, 42 Ala. 117. p. 292. 
 Rennell v. Kimball, 5 Allen, 856. p. 43. 
 Renner v. Bank of Columbia, pp. 53, 
 
 116, 143, 193, 204. 
 Rensselaer Glass Factory v. Reid, 5 Cow. 
 
 611. p. 317. 
 Rex V. Aire, etc., Nav. Co., 2 Term Bep. 
 
 664. p. 462. 
 Rex ». Atwood, 1 Nev. & M. 286. p. 
 
 463. 
 Rex V. Bigg, 3 P. Wms. 419. pp. 147, 
 
 244. 
 Rex V. Chester, 1 Mau. & Sel. 101. p. 
 
 464. 
 Bex V. Davie, 6 Ad. & E. 374. p. 468.- 
 Rex V. Ecclesfield, 1 Barn. & Aid. 360. 
 
 p. 31. 
 Rex V. Feversham, 8 Term Rep. 356. p. 
 
 468. 
 Bex V. Gordon, 1 Barn. & Aid. 524. p. 
 
 63. 
 Rex V. Grant, 1 Barn. & Adol. 111. p. 
 
 463. 
 Bex V. Grosvenor, 1 Wils. 18. p. 463. 
 Bex V. Humphrey, 1 McCl. & Y. 191. 
 
 p. 241. 
 Rex V. Johns, Lofft, 76. pp. 26, 463. 
 Rex V. JoUiffe, 2 Dow. & Ry. 240; 2 
 
 Barn. & Cress. 54. pp. 17, 26. 
 Rex i;. Lainden, 8 Term Bep. 879. p. 
 
 364. 
 Bex V. Lee, 12 Modern, 514. p. 289. 
 Bex o. Mashiter, 6 Ad. & E. 153. p. 468. 
 Bex V. Metcalt 2 Stark. N. P. 249. p. 
 
TABLK OF CASES CITED. 
 
 Ivii 
 
 Kex II. Miller, 6 Term Eep. 280. p. 463- 
 Bex 0. Salivay, 9 Barn. & Cress. 424. p. 
 
 464. 
 Kex V. Scott, 6 Term Eep. 604. p. 462. 
 Rex «. Spencer, 3 Burr. 1839. p 463. 
 Rex V. Tomlyn, Cases temp. Hardw. 310. 
 
 p. 463. 
 Rex V. Westwood, 4 Barn. & Cress. 786. 
 
 p. 463. 
 Reynolds v. Continental Ins. Co., 86 Mich. 
 
 131. p. 107. 
 Reynolds v. Jourdan, 6 Cal. 108. p. 393. 
 Rhea k. Puryear, 26 Ark. 344. p. 294. 
 Rhoades v. Castner, 12 Allen, 180. p. 
 
 378. 
 Rice ». Barrett, 116 Mass. 314. p. 284. 
 Rice V. Joham, 4 Abb. App. Dec. 87. p. 
 
 .316. 
 Rice V. "Wood, 113 Mass. 133. p. 294. 
 Rich V. Johnson, 61 HI. 246. p. 286. 
 Rich V. Kneeland, Cro. Jac. 330. p. 136. 
 Rich 1). Munroe, 14 Barb. 602. p. 290. 
 Rich V. Ryder, 105 Mass. 306. p. 282. 
 Richardson v. Capes, 4 Dow. & Ry. 512. 
 
 p. 17. 
 -Richardson v. Comstock, 21 Ark. 69. p. 
 
 864. 
 Richardson v. Copeland, 6 Gray, 586. p. 
 
 272. 
 Richardson v. Emery, 23 N. H. 220. p. 
 
 84. 
 Richardson v. G-oddard, 23 How. 44. pp. 
 
 40, 230. 
 Richardson v. Walker, 2 Barn. & Cress. 
 
 839. p. 107. 
 Richardson v. Walker, 4 Dow. & Ry. 498. 
 
 p. 17. 
 Richmond v. Smith, 8 Bam. & Cress. 9. 
 
 p. 453. 
 Biekard v. Michigan, etc., R. Co., 20 HI. 
 
 404. p. 225. 
 Rickford v. Ridge, 2 Camp. 587. pp. 41, 
 
 209. 
 Ricks ». Dillahunty, 8 Port. 140. p. 308. 
 Ridgway v. Bank, 12 Serg. & R. 256. p. 
 
 82. 
 Righter v. Roller, 31 Ark. 170. p. 311. 
 Righton V. Blake, 1 Brev. 159. p. 817. 
 Riley v. Home, 5 Bing. 217. p. 136. 
 Rindskoff v. Barrett, 14 Iowa, 101. pp. 
 
 44, 45, 214. 
 
 Ripley v. Crocker, 47 Me. 370. p. 443. 
 Rivers v. Burbanl^ 13 Nev. 398. p. 331. 
 Roach V. Gray, 16 Cal. 383. p. 390. 
 Robbins v, Harrison, 31 Ala. 160. p. 315. 
 Roberts v. Baker, 1 Cromp. & M. 808. 
 
 p. 272. 
 Roberts v. Jackson, 2 Stark. N. P. 735. 
 
 p. 293. 
 Roberts v. Short, 1 Texas, 373. p. 386. 
 Robertson v. Clarke, 1 Bing. 445. p. 404. 
 Robertson v. French, 4 East, 135. pp. 
 
 249, 836, 403. 
 Robertson o. Jackson, 2 C. B. 412. pp. 
 
 369, 409, 411. 
 Robertson v. Money, Ryan & M. 75. p. 
 
 404. 
 Robertson v. Wait, 8 Exoh. 299. p. 409. 
 Robie V. Sedgwick, 35 Barb. 319. p. 463. 
 Robinson v. Chittenden, 7 Hun, 183. p. 
 
 100. 
 Robinson ». Dunmore, 2 Bos. & Pul. 416. 
 
 p. 221. 
 Robinson v. Eiske, 25 Me. 401. p. 369. 
 Robinson o. Harman, 1 Exoh. 855. p. 
 
 370. 
 Robinson v. MoUett, L. R. 5 C. P. 646 ; 
 
 L. R. 7 C. P. 84; L. R. 7 H. L. Cas. 
 
 802. pp. 288, 299. 
 Robinson v. Robinson, 1 De G. M. & G. 
 
 256. p. 294. 
 Robinson v. United States, 13 Wall. 363. 
 
 pp. 98, 816, 362, 372. 
 Rodman v. Hoops, 1 Dall. 85. p. 84. 
 Rodriguez v. Heffernan, 5 Johns. Ch. 429. 
 
 p. 290. 
 Roe V. Lees, W. Black, 1171. p. 173. 
 Rogers v. Allen, 47 N. H. 529. p. 454. 
 Rogers ». Boehm, 2 Esp. 702. p. 294. 
 Rogers v. Brenton, 10 Q. B. 26. p. 63. 
 Rogers v. Colt, 21 N. J. L. 704. p. 364. 
 Rogers v. Forrester, 2 Camp. 485. p. 227. 
 Rogers v. Mechanics' Ins. Co., 1 Story, 
 
 606. pp. 32, 40. 
 Rogers v. Railroad Co., 2 Lans. 269. p. 
 
 215. 
 Rogers ».' Woodruff, 30 Ohio St. 682. p. 
 
 450. 
 Rosenback v. Salt Springs National Bank,. 
 
 53 Barb. 495. p. 247. 
 Rose V. Beattie, 2 Nott & M. 688. pp. 
 
 308, 309. 
 
Iviil 
 
 TABLE OF CASES CITED. 
 
 Eosenstock v. Torniey, 82 Md. 169. pp. 
 
 284, 298. 
 Kosettere. Cahlman, 8 Exeh. 261. p. Ill 
 Eosewarne v. Billing, 15 C. B. (n. s.) 316- 
 
 p. 288. 
 Koss 1!. Drinker, 2 Hall, 415. p. 283. 
 Eothwell V. Oook, 1 Bos. & Pul. 172. p. 
 
 256. 
 Eoweliffe v. Leigh, L. E. 6 Ch. Div. 256. 
 
 p. 294. 
 Eowland v. Burton, 2 Harr. (Del.) 288, 
 
 pp. 81, 83. 
 Eowland ti. Hanna, 2 B. Mon. 131. p, 
 
 270. 
 Eoxburgh v. Eobertson, 2 Bli. 156. p. 
 
 273. 
 Eoyal British Bank, In re, 26 L. J. (Ch.) 
 
 542. p. 246. 
 Euan V. Gardner, 1 "Wash. 0. Ct. 145. 
 
 pp. 100, 125. 
 Eugg V. Minnett, 11 East, 210. p. 315. 
 Euiz !). Norton, 4 Oal. 359. p. 364. 
 Ru'pp V. Sampson, 16 Gray, 398. p. 108. 
 J>use V. Mutual, etc., Ins. Co., 26 Barb. 
 
 557. p. 266. 
 Eushforth v. Hadfleld, 6 East, 522. pp. 
 
 99, 185, 143, 193, 238, 841. 
 Eussell V. Hankey, 6 Term Eep. 12. pp. 
 
 210, 284. 
 Eussell V. Minor, 22 Wend. 669. p. 814. 
 Eussell Man. Co. v. New Haven Steam- 
 boat Co., 50 N. T. 121. pp. 226, 280. 
 Russian Steam Nav. Co. v. Silva, 13 C. B. 
 
 (n. s.) 610. p. 410. 
 Eust V. Low, 6 Mass. 90. p. 27. 
 liutter B. Blake, 2 Hayes & J. 355. p. 
 
 311. 
 Eyder ». Wooley, 10 Week. Eep. 294. 
 
 p. 379. 
 Eyerss v. Wheeler, 22 Wend. 148. pp. 
 
 351, 400. 
 
 Sadler v. Dixon, 8 Mee. & W. 900. p. 
 
 257. 
 Saftbrd v. Wyckoff, 4 Hill, 442. p. 245. 
 Sager v. Portsmouth, etc., R. Co., 81 Me. 
 
 228. pp. 229, 437. 
 Sager v. Tupper, 88 Mich. 258. p. 378. 
 Saint V. Smith, 1 Coldw. 61. p. 46. 
 St. John v. American Fire Ins. Co., 1 
 
 Duer, 871 ; 11 N. Y. 516. pp. 151, 152. 
 
 St. John V. Kidd, 26 Cal. 263. p. 890. 
 St. John V. Van Santvoord, 25 Wend. 
 
 660. pp. 135, 136, 137, 140, 144. 
 St. Nicholas Ins. Co. v. Merchants' Mu- 
 tual Ins. Co., 5 Bosw. 238., p. 440. 
 Salisbury v. Stainer, 19 Wend. 158. p. 
 
 427. 
 Salisbury v. Townson, 1 Arnould on Ins. 
 
 55. p. 42. 
 Salisbury (Marquis of) v. Gladstone, 9 H. 
 
 L. Cas. 692. pp. 17, 31. 
 Salmon Falls Man. Co. t>. Goddard, 14 
 
 How. 446. pp. 815, 876. 
 Salter v. Ham, 81 N. Y. 321. p. 283. 
 Salters' Co. ». Jay, 2 Gal. & Dav. 414. 
 
 p. 17. 
 Salt Springs National Bank v. Burton, 
 
 58 N. Y. 430. p. 96. 
 Salvador v. Hopkins, 3 Burr. 1707. pp. 
 
 254, 257. 
 Sammis v. Clark, 13 HI. 544. p. 317. 
 Sampson v. Gazzam, 6 Port. 123. pp. 
 
 180, 436. 
 Sampson v. Hand; 6 Whart. 324. p. 324. 
 San Antonio v. Ferris, 9 Texas, 69. p. 
 
 244. 
 Sanborn v. Firemen's Ins. Co., 16 Gray, 
 
 488. pp. 81, 82, 245. 
 Sanders v. Jameson, 2 Car. & Kir. 557. 
 
 pp. 11, 313. 
 Sanderson v. Columbian Ins. Co., 2 
 
 Cranch C. Ct. 218. p. 257. 
 Sand ford ». Eaikes, 7 Me. 646. p. 853. 
 Sandilands v. Marsh, 2 Barn. & Aid. 673. 
 
 p. 280. 
 Sands v. Taylor, 5 Johns. 859. p. 808. 
 Sanford v. Mechanics', etc., Ins. Co., 12 
 
 Cush. 541. p. 262. 
 Sanford v. Rawlings, 43 Dl. 92. p. 371. 
 San Francisco Gaa Co. v. San Francisco, 
 
 9 Cal. 471. p. 245. 
 Sanson v. Madison, 15 Wis. 144. p. 875. 
 Satterlee v. Groat, 1 Wend. 272. p. 215. 
 Saunders v. Clark, 106 Mass. 331. p. 44. 
 Savill V. Blanchard, 4 Esp. 53; Doug. 
 
 519. p. 195. 
 Savings Bank v. Davis, 8 Conn. 202. p. 
 
 244. 
 Savings Bank v. Ward, 100 U. S. 168. p. 
 
 435. ' 
 Sawtelle v. Drew, 122 Mass. 228. p. 270. 
 
TABLE OF CASES CITED. 
 
 LiX 
 
 Sawyer v. Baldwin, 11 Pick. 492. p. 96. 
 Scales V. Key, 11 Ad. & B. 819. pp. 26, 
 
 27. 
 Scaramanga u. Stamp, 28 Week. Bep. 
 
 691. p. 254. 
 Schenck v. Griffin, 88 N. J. L. 462. p. 
 
 462. 
 Schieffelin v. Harvey, Anth. 76. pp. 221, 
 
 465. 
 Schierhold v. North Beach, etc., B. Oo., 
 
 4 Cal. 447. p. 381. 
 SchlessiDger v. Dickinson, 5 Allen, 47. 
 
 p. 41. 
 Schmaltz v. Avery, 16 Q. B. 666. p. 845. 
 Schneider v. Heath, 3 Camp. 506. p. 
 
 875. 
 Schnitzer v. Oriental Print -Works, 114 
 
 Mass. 123. p. 803. 
 Scholes V. Ackerland, 15 HI. 474. p. 225. 
 Schoneman v. Fegley, 14 Pa. St. 376. 
 
 pp. 78, 79. 
 Schrieber v. Horsley, 11 Jur. (n. s.) 675, 
 
 p. 881. 
 Schuchardt v. Allen, 1 Wall. 859. p. 
 
 284. 
 Schultz V. Liedeman, 14 C. B. 38. p. 409. 
 Schwartz v. G^rmania Life Ins, Co., 18 
 
 Minn. 448. p. 55. 
 Schwartze v. Yearly, 81 Md. 270. pp. 
 
 295, 438. 
 Scott V. Blood, 16 Me. 192. p. 282. 
 Scott V. Bourdillion, 2 Bos. & Pul. N. E. 
 
 214. p. 401. 
 Scott V. Irving, 1 Barn. & Adol. 606. pp. 
 
 48, 251, 252, 2!92, 298. 
 Scott V. Ocean Bank, 23 N. T. 289. p. 
 
 210. 
 Scott V. Saffold, 37 Ga. 884. p. 46. 
 Scott V. Whitney, 41 Wis. 504. p. 45. 
 Scribner v. Collar, 40 Mich. 378; 8 Cent. 
 
 L. J. 205. p. 295. 
 Scribner v. Hollis, 48 N. H. 80. p. 455. 
 Scudder v. Bradbury, 106 Mass. 422. pp. 
 
 805, 871. 
 Seager v. Sligerland, 2 Caines, 219. pp. 
 
 9, 59. 
 Searle v. Keeves, 2 Esp. 598. p. 193. 
 Searson r. Heyward, 1 Spears, 249. p. 
 
 45. 
 Seay v. Walton, 6 T. B. Men. 868. p. 
 
 Seccomb v. Provincial Ins. Co., 10 Allen, 
 
 305. pp. 68, 439. 
 Security Bank v. National Bank, 67 N 
 
 Y. 458. p. 212. 
 Seixas v. Wood, 2 Caines, 48. p. 306. 
 Selby V. Kobinson, 2 Term Eep. 758. p. 
 
 31. 
 Selleck v. French, 1 Conn. 82. p. 317. 
 Selway v. Holloway, 1 Ld. Baym. 46. p. 
 
 215. 
 Senao v. Pritohard, 4 La. 160. p. 96. 
 Senior v. Armitage, Holt N. P. 60. p. 
 
 274. 
 Sennett v. I'ierce, 1 Mart (k. 8.) 192. p. 
 
 278. 
 Serjent v. Bead, 1 Wils. 91. p. 65. 
 Settle V. St. Louis, etc., Ins. Co., 7 Mo. 
 
 379. pp. 162, 163, 164, 168. 
 Sevey's Case, 6 Me. 118. p. 388. 
 Sewall 0. Allen, 6 Wend. 381. pp. 135, 
 
 186, 148, 215. 
 Sewall V. Gibbs, 1 Hall, 602. p. 311. 
 Sewell o. Corp, 1 Car. & P. 392. pp. 2, 
 
 28, 38, 53, 98, 278. 
 Seymour v. Osborne, 11 Wall. 616. p. 
 
 368. 
 Seymour v. Page, 83 Conn. 66. p. 388. 
 Shackford v. Newington, 46 N. H. 415. 
 
 p. 365. 
 Shackleford v. New Orleans, etc., B. Co., 
 
 37 Miss. 202. p. 100. 
 Shakespear v. Peppin, 6 Term Bep. 241. 
 
 p. 32. 
 Sharman v. Brandt, L. B. 6 Q. B. 720. 
 
 p. 301. 
 Shaw V. Badger, 12 Serg. & B. 275. p. 
 
 312. 
 Shaw V. Ferguson, 11 Cent. L. J, 106. p. 
 
 27. 
 Shaw ». Mitchell, 2 Mete. 65. p. 282. 
 Shaw V. Neale, 6 H. L. Cas. 681. p. 
 
 473. 
 Sbelburne Falls National Bank v. Towns- 
 ley, 102 Mass. 177. p. 206. 
 Sheldon v. Benham, 4 Hill, 129. p. 206. 
 Sheldon v. Fairfax, 21 Vt. 102. p. 244. 
 Sheldon v. Bobinsoi), 7 N. H. 167. p. 
 
 215. 
 Shelton v. Merchants' Despatch Transp. 
 
 Co., 86 N. Y. S. C. (J. & a.) 627. p. 
 
 248. 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 Slionk V. Propeller Co., 60 Pa. St. 109. 
 
 p. 225. 
 Shepherd v. Kain, 5 Barn. & A.dol. 200. 
 
 p. 375. 
 Shoppard v. Hall, 3 Barn. & Adol. 433. 
 
 p. 17. 
 Sherer v. Easton Bank, 38 Pa. St. 135. p. 
 
 316. 
 Sherrod v. Langdon, 21 Iowa, 518. p. 
 
 284. 
 Sherwin ». Bugbee, 16 Vt. 439. p. 462. 
 Sherwood v. Sissa, 5 Nev. 349. p. 82. 
 Shewel v. Givan, 2 Blaelcf. 312. p. .317. 
 Shields v. Petlee, 2 Sandf. 262. p. 311. 
 Shimmel v. Erie E. Co., 5 Daly, -396. 
 
 p. 205. 
 Shindler v. Houston, 1 Denio, 51. p. 314. 
 Shipley v. Kymer, 1 Mau. & Sel. 484. 
 
 p. 290. 
 Shipman v. The State, 44 Wis. 458. p. 
 
 317. 
 Shore v. Wilson, 9 CI. & Fin. 365. pp. 
 
 368, 898. 
 Shove V. Wiley, 18 Pick. 558. p. 81. 
 Shrewsbury v. Hart, 1 Car. & P. 113. p. 
 
 463. 
 Shugart v. Moore, 78 Pa. St. 469. p. 365. 
 Shuttle worth v. Le Eleming, 19 C. B. 
 
 (n. s.) 687. p. 27, 331. 
 Sigsworth v. Mclntyre, 18 111. 126. p. 
 
 100. 
 Simkins v. Norwich, etc.. Steamboat Co., 
 
 11 Cush. 102. p. 236. 
 Simmons v. Law, 8 Keyes, 219. pp. 429, 
 
 435. 
 Simpson v. Kimberlin, 12 Kan. 579. p. 
 
 364. 
 Simpson ». Margiston, 11 Q. B. 32. p. 
 
 878. 
 Simpson o. Wells, L. E. 7 Q. B. 214. p. 
 
 26. 
 Sims V. State Ins. Co., 47 Mo. 54. pp. 
 
 258, 406. 
 Sinclair v. Wood, 3 Cal. 98. p. 282. 
 Singleton v. Hilliard, 1 Strobh. 203. p. 
 
 82. 
 Sipperly v. Stewart, 50 Barb. 62. p. 43. 
 Sleght V. flartshorne, 2 Johns. 532. p. 
 
 45. 
 SBeght V. Bhinelander, 1 Johns. 195; 2 
 Johns. 532. pp. 401, 408. 
 
 Slim *. Great Northern E. Co., 14 C. B. 
 
 647. p. 215. 
 Smalley v. Hendrickson, 29 N. J. L. 371. 
 
 p. 811. 
 Smart v. Hyde, 8 Mee. & W. 723. p. 
 
 311. 
 Smedes n. Bank of XJtioa, 20 .Johns. 372; 
 
 8 Cow. 362. p. 209. 
 Sraetz V. Kennedy, Kiley, 218. pp. 297, 
 
 466. 
 Smith 0. Birmingham Gas-Light Co., 3 
 
 Nev. & M. 771. p. 244. 
 Smith V. Boutcher, 1 Car. & Kir. 573. p. 
 
 289. 
 Smith V. Cartwright, 6 Bxch. 927. p. 
 
 244. 
 Smith V. Cheshire, 13 Gray, 308. p. 464. 
 Smith V. Chester, 1 Durnf. & E. 655. p. 
 
 211. 
 Smith V. Clark, 12 Iowa, 82. p. 81. 
 Smith V. Clayton, 29 N. J. L. 357. p. 
 
 368. 
 Smith V. Collins, 115 Mass. 388. p. 282. 
 Smith V. Cologan, 2 Term Eep. 188. p. 
 
 285. 
 Smith V. Dennie, 6 Pick. 262. p. 314. 
 Smith V. Floyd, 18 Barb. 523. p. 331. 
 Smith V. Gibbs, 44 N. H. 335. p. 46. 
 Smith V. Jeffryes, 16 Mee. & W. 561. p. 
 
 451. 
 Smith V. Kennedy, 13 Hun, 9. p. 330. 
 Smith V. Lascelles, 6 Term Kep. 189. p 
 
 291. 
 Smith V. Lawrence, 26 Conn. 476. p. 282. 
 Smith V. Lindo, 5 C. B. (tr. s.) 587. pp 
 
 287, 288. 
 Smith V. Lynes, 8 Sandf. 203 ; 5 N. T. 42 
 
 p. 314. 
 Smith V. Marrable, 11 Mee. & W. 5. p 
 
 370. 
 Smith V. Mercer, 6 Taun. 76. p. 2H. 
 Smith V. Miller, 52 N. Y. 645 ; 42 N. Y. 
 
 171. p. 824. 
 Smith V. Mobile Nav., etc., Co., 30 Ala. 
 
 167. p. 439. 
 Smith V. Nashua, etc., E. Co., 27 N. H. 86. 
 
 p. 225. 
 Smith V. Odlin, 4 Yeates, 468. p. 82. 
 Smith 1). Eice, 66 Ala. 417. pp. 30, 98. 
 Smith V. Smith, 4 Hair. (Del.) 632. p 
 84. 
 
TARLB OF CASES CITED. 
 
 Ixi 
 
 Smith V. Smith, 30 Vt. 139. p. 311. 
 Smith V. Sublett, 28 Texas, 163. p. 288. 
 Smith V. Tracy, 36 N. Y. 79. p. 284. 
 Smith B.Tyson, 1 Per. -ft Dav. 307. pp. 
 
 67, 104. 
 Smith V. "Walton, 8 Bing. 238. p. 270. 
 Smith i>. "Whiting, 12 Mass. 6. pp. 53, 205, 
 
 207. 
 Smith V. "Wilson, 8 Barn. & Adol. 728. 
 
 pp. 271, 335, 368, 376. 
 Smith V. "Wright, 1 Caines, 43. pp. 8, 30, 
 
 96, 122, 193, 283. 
 Smithwiclt v. Ellison, 2 Ired. L. 326. p. 
 
 267. 
 Smyth ». "Ward, 46 Iowa, 339. p. 442. 
 Sneesby v. Lancashire, etc., E. Co., L. K. 9 
 
 Q. B.263. p. 221. 
 Snelling v. Hall, 107 Mass. 134. p. 435. 
 Snow V. Parsons, 28 "Vt. 459. p. 333. 
 SnoWden v. "Warder, 3 Kawle, 101. pp. 
 
 96, 807, 430. 
 Society v. Haight, 1 K J. Eq. 393. p, 
 
 269. 
 Solly V. Hinde, 2 Cromp. & M. 616. p< 
 
 365. 
 Solly .;. Bathhone, 2 Man. & Sel. 299, 
 
 1 p. 288, 290. 
 Solomon v. Commissioners, 41 Ga. 167, 
 
 p. 383. 
 Somerby v. Tappan, 1 Wright, 570. 
 
 38. 
 
 Sotilichos 1). Kemp, 8 Exch. 105. p. 869, 
 Souter V. Drake, 5 Barn. & Adol. 992 
 
 p. 370. 
 Southern Express Co. v. Armstead^ 50 
 ■ Ala. 350. p. 232. 
 Southern Express Co. v. Everett, 87 Ga. 
 
 688. p. 233. 
 Southwell II. Bowdich, I(, K. 1 C. P. Div. 
 
 100. p. 301. 
 South-"Westerp Freight Co. v. Plant, 45 
 
 Mo. 517. p. 315. 
 South-"We3tern Freight and Cotton-Press 
 Co. V StansirJ, 44 Mo. 71. pp. 104, 
 314, 466. 
 South wiclt V. Southwiok, 49 N. Y. 610; 
 
 9 Abb. Pr. (n. s.) 109. p. 830. 
 Soutier v. Kellerman, 18 Mo. 509. p. 
 
 376. 
 So» cby V. Coloman, L. E. 2 Exch. 96 ; 
 36 L. J. (Exch.) 57. p. 67. 
 
 Spaids V. Barrett, 57 111. 289. p. 865. 
 Spartali v. Benecke, 10 C. B. 212. pp. 
 
 878, 879, 381, 430. 
 Spaulding v. Lowell, 23 Pick. 71. pp. 41, 
 
 464. 
 Spear v. Hart, 8 Eobt. 420. p. 451. 
 Spear v. Ladd, 11 Mass. 94. p. 146. 
 Spear v. Newall, 23 Vt. 150. p. 297. 
 Spears v. Ward, 48 Ind. 541. p. 435. 
 Spencer v. Ballou, 18 N". Y. 327. p. 
 
 209. 
 Spencer v. Billing, 3 Camp. 310. p. 284. 
 Spicer v. Cooper, 1 Q. B. 424. p. 373. 
 Spicer v. Lea, 11 Eiist, 312. p. 337. 
 Sprague v. Sprague, 30 "Vt. 483. p. 317. 
 Spring V. Cockburn, 19 Upper Canada 
 
 C. P. 63. p. 874. 
 Springstein n. Sampson, 82 N. Y. 706. 
 
 p. 388. 
 Springwell v. Allen, Aleyn, 91; 2 East, 
 
 448. p. 306. 
 Sproat V. Donnell, 26 Me. 185. p. 221. 
 Sprong -I). Railroad Co., 60 Barb. 30. p. 
 
 827. 
 Stafford v. Gardner, L. E. 7 0. P. 242. 
 
 pp. 78, 267, 272. 
 Stagg V. Insurance Co., 10 Wall. 589. 
 
 pp. 296, 445. 
 Stainton v. Jones, 2 Selw. N. P. 1225. p. 
 
 17. 
 Stamford Bank v. Ferris, 17 Conn. 272. 
 
 pp. 20-5, 206. 
 Standard Oil Co. v. Triumph Ins. Co., 3 
 
 Cent. L. J, 602. p. 258. 
 Stanton v. Natchez Ins. Co., 5 How. 744. 
 
 p. 251. 
 Strtutoii i;. Small, 3 Sandf. 230. p. 814. 
 Stapleton v. Conway, 3 Atk. 727. p. 111. 
 Star Glass Co. v. Morey, 108 Mass. 570. 
 
 p. 111. 
 Star of Hope (The), 17 Wall. 651. pp. 
 
 221, 222, 229. 
 Startup V. Doderidge, 2 Ld. Eaym. 1158 ; 
 
 2 Salk. 657; 1 Mode:;n, 60. pp. 172, 
 
 173. 
 State (The) v. Butner, 76 N. C. 118. p. 61. 
 State (The) v. Jersey City, 4 Zab. 108. 
 
 p. 462. 
 State (The) v. Lewis, Add. 279. p. 62. 
 State (The) v. Lowell, 15 Ark. 664. p. 
 
1x11 
 
 TABLE OF CASES CITED. 
 
 State (The) v. MoClay, 1 Harr. (Del.) 520. 
 
 p. 269. 
 State (The) v. Bamsey, 78 N. C. 448. p. 
 
 338. 
 State Bank v. Aersten, 4 HI. 135. p. 212. 
 State Bank v. Bank, 41 Barb. 843. p. 
 
 209. 
 State Bank v. Bowell, 6 Mart. (u. s.) 267. 
 
 p. 206. 
 Steamship Dock Co. v. Heron, 52 Pa. St. 
 
 280. p. 246. 
 Stearns ». Haven, 16 Vt. 87. p. 283. 
 Stebbins v. Brown, 66 Barb. 274. p. 453. 
 Stebbins v. Globe Ins. Co., 2 Hall, 632. 
 
 pp. 55, 263, 478, 484. 
 Steel V. Houghton, 1 H. Black. 51. pp. 
 
 31, 3^1. 
 Steele v. MoTyer, 31 Allen, 667. p. 436. 
 Steinback v. Lafayette Ins. Co., 54 N. T. 
 
 90. p. 259. 
 Stenton v. Jerome, 54 N. T. 480. p. 310. 
 Stephens v. De Medina, 4 Q. B. 422. p. 
 
 270. 
 Stephens, etc., Transp. Co. o.Tuokerman, 
 
 38 N. J. L. 548. p. 829. 
 Stephenson v. Hart, 4 Bing. 476. pp. 
 
 186, 143, 225. 
 Sterling v Jaudon, 48 Barb. 459. p. 280. 
 Sterling v. Marietta, etc.. Trading Co., 
 
 11 Serg. &. E. 179. p. 206. 
 Stevens v. Ooxe, 4 Pa. St. 18. p. 462. 
 Stevens v. Cashing, 1 N. H. 17. p. 812. 
 Stevens v. Paterson, etc. B. Co., 84 N. J. 
 
 L. 582. p. 27. 
 Stevens v. Beeves, 9 Pick. 198. pp. 6, 
 41,54. 
 ■ Stevenson v. Snow, 8 Burr. 1237. p. 256. 
 Stewart v. Aberdein, 4 Mee. & W. 211. 
 
 pp. 49, 251, 252, 292, 298. 
 Stewart o. Cauty, 8 Mee & W. 160. p. 49. 
 Stewart v. Kohle, 8 Stark. N. P. 861. p 
 
 298. 
 Stewart v. Scudder, 2 Am. L. Beg. 80. 
 
 pp. 88, 300. 
 Stewart ». Smith, 29 111. 897. p. 874. 
 Steyer v. Dwyer, 31 Iowa, 20. p. 405. 
 Stillman v. Hurd, 10 Texas, 109. p. 466. 
 Stimpson v. ttreen, 18 Allen, 326. p 
 
 317. 
 Stockbridge .,. West Stockbridjje, 12 
 Mass. 400. p. 468. 
 
 Stocker v. Brocklebank, 3 Man. & Or. 250. 
 
 p. 283. 
 Stoever v. Whitman, 6 Binn. 417. pp. 
 
 22, 124, 130. 
 Stone V. Aldrich, 43 N. H. 52. p, 864. 
 Stone V. Bradbury, 14 Me. 185. p. 386. 
 Stone V. Rawlinson, "Vyilles, 561. p. 20. 
 Stone V. Bice, 58 Ala. 95. p. 72. 
 Stoney v. Farmers' Transp. Co., 17 Hun, 
 
 583. p. 76. 
 Stoops V. Smith, 100 Mass. 68. p. 894. 
 Storr V. Crowley, 1 McCl. & Y. 186. p. 
 
 225. 
 Stray v. Eussell, 29 L. J, (Q. B.) 279. p. 
 
 287. 
 Street v. Blay, 2 Bam. & Adol. 456. p 
 
 315. 
 Street v. Chapman, 29 Ind. 142. p. 
 
 309. 
 Streeter v. Horlock, 1 Bing. 34. p. 228. 
 Stringer v. Davis, 35 Cal. 25. p. 284. 
 Strong V. Bliss, 6 Meto. 893. p. 299. 
 Strong V. Carrington, 2 Am. L. Beg. (k. 
 
 s.) 287. p. 228. 
 Strong V. Grand Trunk E. Co., 15 Mich. 
 206. pp. 22, 82, 63, 71, 235, 408, 469. 
 Strong V. King, 35 111. 9. p. 107. 
 Strong V. Byan, 46 Cal. 83. p. 390. 
 Stroud 0. Tilton, 4 Abb. App. Deo. 248. 
 
 p. 83. 
 Stuart V. Crawley, 2 Stark. N. P. 823. p. 
 
 186. 
 Studdy V. Sanders, 5 Barn. & Cress. 628 
 
 p. 375. 
 Stultz V. Dickdy, 6 Am. Dec. 411 ; 5 Binn. 
 
 285. pp. 112, 124, 268, 441. 
 Stultz V. Locke, 47 Md. 562. p. 485. 
 Sturgis V. Buckley, 32 Conn. 18. p. 304. 
 Sturgis V. Carv. 2 Curtis, 882. p. 257. 
 Sturm V. Williams, 88 N. Y. S. C. (J & 
 
 S.) 323. p. 305. 
 Sugart ti. Mays, 54 Gii. 554. p. 45. 
 Sullivan v. Cotton States Ins. Co., 43 Ga 
 
 428. p. 266. 
 Sullivan v. Hense, 2 Cal. 424. p. 390. 
 Sullivan v. Thompson, 99 Mass. 259. dd 
 
 232, 234. 
 Sultana (The), v. Chapman, 5 Wis. 464. 
 
 p. 227. 
 Sumner o. Stewart, 69 Pa. St. 321 dd 
 285, 288. ■ *^*^" 
 
7ABLB OP CASES CITED. 
 
 Ixiii 
 
 Sumner v. Tyson, 20 N. H. 384. pp. 44, 
 
 310. 
 Sunday v. Gordon, Blatohf. & H. Adm. 
 
 569. p. 279. 
 Suse V. ^ompe, 8 C. B. (n. s.) 538. p. 
 
 447. 
 Sutton V. Great Western E. Co., 11 Jur. 
 ; (n. s.) 879. pp. 45, 236. 
 Sutton V. Tatham, 10 Ad. & E. 27. pp. 
 
 47, 284, 287, 288. 
 Sutton V. Temple, 12 Mee. & W. 52. 
 
 pp. 267, 272, 370. 
 Suydara v. Clark, 2 Sandf. 183. p. 314. 
 Suydam u. Westfall, 4 Hill, 2U. p. 293. 
 Swain v. Cheney, 41 N. H. 232. p. 279. 
 Swallow (The), 01c. Adm. 334. p. 276. 
 Swamscot Machine Co. v. Partridge, 25 N. 
 
 H. 369. pp. 264, 470. 
 Swancott v. "Westgarth, 4 East, 74. p. 
 
 305. 
 Sweet V. Colgate, 20 Johns. 196. p. 306. 
 Sweet V. Jenkins, 1 K. I. 147. p. 441. 
 Sweet V. Lea, 3 Man. & G. 452. p. 397. 
 Sweet V. Leach, 6 Bradw. 212. pp. 33, 
 
 73, 277. 
 Sweeting v. Pearce, 7 C. B. {s. s.) 449; 
 
 9 C. B. (n. s.) 534. pp. 40, 48, 292, 293. 
 Swett V. Shumway, 102 Mass. 165. p. 
 
 372. 
 Swift V. Gifford, 2 Lowell, 110. p. 282. 
 Swift V. Moaeley, 10 Vt. 208. p. 238. 
 Swift ■». Tyson, 16 Pet. 1. p. 103. 
 Syers v. Bridge, 1 Doug. 509. p. 100. 
 Syers ». Jones, 2 Exch. 111. p. 382. 
 Symonds v. Lloyd, 6 C. B. (n. s.) 691. 
 
 p. 393. 
 
 Table Mountain Tunnel Co. v. Stranahan, 
 
 31 Cal. 387. p. 390. 
 Taff Vale E. Co. y. Giles, 2 El. & Bl. 823. 
 
 p. 215. 
 Tailors of Bath v. Glazby, 2 Wils. 266. 
 . p. 263. 
 
 Talbott V. Hooser, 12 Bush, 410. p. 333. 
 Tanistry's Case, Da v. 32. p. 31. 
 Taunton Bank v. Richardson, 6 Pick. 436. 
 
 p, 206. 
 Taunton Copper Co. v. Merchants' Ins. 
 
 Co., 22 Pick. 108. pp. 40, 221." 
 Taylor v. , 2 Ld. Baym. 792. p. 
 
 136. 
 
 Taylor v. Mtna Life Ins. Co., 13 Gray, 
 
 433. pp. 55, 267. 
 Taylor v. Beavers, 4 E. D. Smith, 215. 
 
 p. 378. 
 Taylor v. Briggs, 2 Car. & P. 525. pp. 
 
 278, 402. 
 Taylor v. Carpenter, 2 Woodb. & M. 1. 
 
 p. 77. 
 Taylor v. Devey, 7 Ad. & E. 409 ; 2 Nev. 
 
 & P. 469 ; 1 Jur. 892 ; W. W. & D. 
 
 646. pp. 11, 67. 
 Taylor v. Dulwioh Hospital, 1 P. Wms. 
 
 655. p. 243. 
 Taylor ». Griswold, 2 C. E. Green, 222. 
 
 pp. 462, 463. 
 Taylor v. Ketehum, 5 Eobt. 507. p. 310. 
 Taylor v. Perkins, 26 Wend. 124. p. 
 
 283. 
 Taylor v. Sotolingo, 6 La. An. 154. p. 
 
 333. 
 Taylor v. Stray, 2 C. B. (if. s.) 175. pp. 
 
 287, 288. 
 Taylor-v. Tucker, 1 Ga. 231. p. 84. 
 Taylor v. Wells, 3 Watts, 65. pp. 215 
 
 238. 
 Taymon v. Mitchell, 1 Md. Ch. 496. p. 
 
 306. 
 Teaff V. Hewitt, 1 Ohio St, 511. p. 271. 
 Teller v. Green, 26 Mich. 70. p. 365. 
 Temple v. Belding, 1 Eoot, 314. p. 317. 
 Templeman v. Biddle, 1 Harr. (Del.) 562. 
 
 pp. 112, 269. 
 Terrell v. Branch Bank, 12 Ala. 502. p. 
 
 206. 
 Terrell v. Walker, 69 N. C. 244. p. 364. 
 Terry, Ee, 7 L. T. (n. s.) 370. pp. 202, 
 
 204. 
 Tewkesbury ». Bricknell, 1 Taun. 142. 
 
 p. 112. 
 Texas v. Hardenburg, 10 Wall. 68. p. 
 
 214. 
 Thackthwaite v. Cock, 3 Taun. 487. pp. 
 
 202, 203, 204. 
 Thatcher v. Bank, 5 Sandf. 121. p. 206. 
 Thayer o. Deen, 2 Hill (S. C), 677. p. 
 
 84. 
 Thayer v. Wadsworth, 19 Pick. 349. p. 
 
 278. 
 Thomas D. Bartow, 48 N. T. 200. p. 311. 
 Thomas v. Boston,' etc., E. Co., 10 Mete. 
 
 472. p. 225. 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Thpmas o. Brackney, 17 Barb. 654. p. 
 
 333. 
 Thomas v.' Clarke, 2 Stark. N. P. 450. 
 
 p. 192. 
 Thomas v. Graves, 1 Mill Const. 303. pp. 
 
 77, 99. 
 Thomas v. Kinsley, 8 G-a. 421. p. 214. 
 Thomas v. O'Hara, 1 Mill Const. 303. 
 
 pp. 98, 195, 278. 
 Thomas v. Thomas, 6 Term Kep. 696. 
 
 p. 398. 
 Thompson v. Ash ton, 13 Johns. 416. pp. 
 
 307, 428, 482, 484. 
 Thompson v. Franks, 37 Pa. St. 327, p. 
 
 281. 
 Thompson v. Hamilton, 12 Pick. 426. 
 
 pp. 41, 282. 
 Thompson v. Knickerbocker Ins. Co., 3 
 
 Cent. L. J. 561. p. 266. 
 Thompson v. Riggs, 5 Wall. 663. pp. 
 
 211, 466, 474, 484. 
 Thompson v. St. Louis Mutual Ins. Co., 
 
 52 Mo. 469. p. 266. 
 Thompson u. Sloan, 23 Wend. 71. p. 
 
 386. 
 Thomson v. Albert, 15 Md. 268. p. 40. 
 Thomson v. Davenport, 9 Barn. & Cress. 
 
 78 ; 2 Smith's Ld. Cas. 297. pp. 344, 
 
 345. 
 Thomson v. Havelook, 1 Camp. 527. p. 
 
 294. 
 Thomson v. Porter, 4 Strobh. Eq. 58. 
 
 p. 82. 
 Thorn v. Rice, 15 Me. 263. p. 33. 
 Thorne v. Deas, 4 Johns. 101. p. 291. 
 Thorpe v. Eyre, 1 Ad. & E. 926. p. 272. 
 Thorpe v. Eyre, 3 Nev. & M. 214. p. 30. 
 Thornton v. Suffolk Man. Co., 10 Cush. 
 
 876. p. 38. 
 Thornton v. Wynn, 12 Wheat. 183. p. 
 
 311. 
 Thurber v. Martin, 2 Gray, 394. p. 333. 
 Thwing V. Great Western Ins. Co., Ill 
 
 Mass. 93. p. 435. 
 Tiohburne v. White, Stra. 145. p. 136. 
 Tiekel v. Short, 2 Ves. 230. p. 291. 
 Tilley v. City of Chicago, pp. 356, 371. 
 Timm v. Bear, 29 Wis. 254. p. 333. 
 Todd V. Reid, 4 Barn. & Aid. 210. p. 192. 
 Toledo, etc., Ins. Co. v. Speares, 16 Ind. 
 
 52. p. 45. 
 
 Tomlinson v. Borst, 30 Barb. 46. p. 83. 
 Tongee v. Kennett, 10 La. An. 800. p. 
 
 291. 
 Tonnereau v. Poyntz, 1 Bro. C. C. 477. 
 
 p. 353. 
 Torrance v. Hayes, 2 Upper Canada C. P. 
 
 338. pp. 45, 77. 
 Totterdell v. Poreham Brick Co., L. R. 1 
 
 C. P. 674. p. 289. 
 Touro V. Cassin, 1 Nott & M. 173. p. 
 
 32. 
 Towell V. Gatewood, 3 III. 22. p. 309. 
 Tower v. Utica, etc., R. Co., 7 Hill, 47. 
 
 p. 221. 
 Town of Pawlet v. Clarke, 9 Cranch, 294. 
 
 p. 463. 
 Townsend v. North- Western Ins. Co., 18 
 
 N.-T. 168. p. 202. 
 Townson v. Guyon, Park. 620. p. 254. 
 Trabue v. Sayre, 1 Bush, 131. p. 8*1. 
 Trask v. Martin, 1 E. D. Smith, 505, p. 
 
 206. 
 Traverse v. Townsend, 1 Bro. C. C. 384. 
 
 p. 294. 
 Treadway v. Shai-on, 7 Nev. 37. p. 99, 
 Tremble v. Crowell, 17 Mich. 493. p. 
 
 460. 
 Trott V. Warren, 2 Pairf. 227. p. 468. 
 Trott V. Wood, 1 Gall. 444. pp. 30, 42, 
 
 192. 
 Trotter v. Grant, 2 Wend. 413. pp. 52, 
 
 318. 
 Trowbridge v. Chapin, 23 Conn. 595. p. 
 
 215. 
 True V. True, 33 Me. 367. p. 286. 
 Trueman v. Loder, 11 Ad. & E. 589. pp. 
 
 289, 303, 344, 345, 349, 350, 362, 481, 484. 
 Trull V. Wheeler, 19 Pick. 240. p. 455. ' 
 Trumper v. Carwardine [1769]. p. 170. 
 Trustees v. Brooklyn Ins. Co., 19 N. T. 
 
 805. p. 82. 
 Tucker v. Ives, 6 Cow. 193. p. 317. 
 Tucker v. Woods, 12 Johns. 189. p. 361. 
 .Tueley v. Thomas, 8 Car. & P. 104. p. 
 
 324. 
 Tumlin v. Goldsmith, 40 Ga. 221. p. 
 
 284. 
 Turnbull v. Garden, 38 L. J. (Ch.) 331. 
 
 p. 294. 
 Turner v. Bank of Pox Lake, 23 How. Pr. 
 
 399; 4 Abb. App. Dec. 434. p. 824. 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 Turner «. Burrows, 5 Wend. 541 ; 8 Wend. 
 
 144. p. 440. 
 Turner v. Dawson, 50 111. 85. p. 52. 
 Turner v. Thomas, L. R. 6 C. P. 610. p. 
 
 292. 
 Turner v. Turner, 44 Mo. 535. p. 365. 
 Tuttle V. Love, 7 Johns. 470. p. 361. 
 Tyson v. Smith, 1 Nev. & P. 784 ; 1 Per. 
 
 & Dav. 307. pp. 40, 66. 
 Tyson v. Smith, 9 Ad. & E. 406. pp. 37, 
 
 64, 78. 
 
 Uhde V. Walters, 3 Camp. 16. pp. 336, 
 
 403. 
 Underwood v. Carney, 1 Gush. 285. p. 
 
 331. 
 Underwood v. Nichols, 17 C. B. 239. p. 
 
 292. 
 Union Bank v. Forrest, 3 Cranch C. Ct. 
 
 ?18. p. 453. 
 Union Bank v. Knapp, 3 Pick. 96. p. 82. 
 Union Bank u. Laird, 2 Wheat. 390. p. 
 
 247. 
 Union Bank v. Stone, 50 Me. .595. p. 81. 
 Union Bank v. Union Ins. Co., Dudley 
 
 (S. C), 171. p. 2-51. 
 Union Bank v. Warren, 4 Sneed, 167. 
 
 p. 212. 
 Union Man. Co. v. Pitkin, 14 Conn. 174. 
 
 p. 244. 
 Union Mutual Ins. Co. v. Indianapolis, 
 
 etc., R. Co., 1 Disney, 480. p. 436. 
 Union R. Co. v. Teager, 34 Ind. 1. p. 33. 
 United States u. Arredondo, 6 Pet. 715. 
 
 p. 96. 
 United States v. Buchanan, Crabbe, 536. 
 
 pp. 33, 109. 
 United States v. Buchanan, 8 How. 83 ; 3 
 
 Wash. C. Ct. 149. pp. 33, 363. 
 United States v. Duval, Gilp. 356. p. 33. 
 United States v. Fillebrown, 7 Pet. 28. 
 
 pp. 294, 333. 
 United States v. McCall, Gilp. 563. p. 33. 
 United States v. McDaniel, 7 Pet. 1. pp. 
 
 294, 333. 
 United States v. Pechman, 7 Pet. 51. 
 
 p. 387. 
 United States Bank v. Binney, 5 Mason, 
 
 176 ; 5 Pet. 529. p. 280. 
 United States Bank v. Meckner, 8 Mart. 
 
 (La.) 809; 18 Am. Dec. 387. p. 205. 
 
 United States Express Co. v. Rush, 24 
 
 Ind. 403. p. 242. 
 United States Life Ins. Co. u. Advance 
 
 Co., 80111. 549. p. 286. 
 Upshare v. Aidee, Com. 25. p. 136. 
 Upton V. Sturbridge Cotton Mills, 111 
 
 Mass. 446. p. 104. 
 Upton u. Suffolk Mills, 4 Cush. 586. p. 
 
 284. 
 Upton V. Suffolk Cotton Mills, 11 Cush. 
 
 587. p.287. 
 
 Vail V. Durant, 7 Allen, 409. p. 293; 
 Vail V. Rice, 5 N. Y. 155. pp. 97, 98, 
 
 435, 451. 
 Vallanee v. Dewar, 1 Camp. 503. pp. 
 
 143, 254, 257. 
 
 Vallejo V. Wheeler, 1 Camp. 143. p. 20. 
 Valentine u. Penny, Noy, 145. p. 32. 
 Van Alstyne v. Mtna Ins. Co., 14 Hun, 
 
 360. p. 440. 
 Van Amee v. Bank of Troy, 8 Barb. 312. 
 
 p. 39. 
 Van Amringe v. Peabody, 1 Mason, 440. 
 
 p. 290. 
 Van Beuren „. Van Gaasbeck, 4 Cow. 
 
 496. p. 317. 
 Van Bokelen v. Taylor, 62 N. T. 105. 
 
 p. 364. 
 Van Doren v. Evej-itt, 2 South. 460. p. 
 
 269. 
 Van Keuren v. Parmelee, 2 N. T. 525. 
 
 p. 280. 
 Van Ness ■„. Pacard, 2 Pet. 137. p. 271. ' 
 Van Rensselaer v. Jewett, 2 N. Y. 141. 
 
 p. 199. 
 Vansands v. Middlesex Bank, 26 Conn. 
 
 144. p. 246. 
 
 Van Santvoord v. St. John, 6 Hill, 157. 
 
 pp. 145, 215, 235. 
 Van Schmidt v. Huntington, 1 Cal. 55. 
 
 p. 390. 
 Varner v. Nobleborough, 2 !Me. 121. p. 
 
 316. 
 Vaughan v. Menlove, 3 Bing. N. C. 468. 
 
 p. 319. 
 Vaughn v. Gardner, 7 B. Mon. 326. pp. 
 
 53, 277. 
 Vaughn v. Raleigh, etc., R. Co., 63 N. C. 
 
 11. p. 80. 
 Veiths V. Hagge, 8 Iowa, 163. p. 317. 
 
TABLE OF CASES CITED. 
 
 Veloria (The), 3 Wall. 189. p. 238. 
 Vermilye v. Adams Express Co., 21 Wall. 
 
 139. pp. 214, 476, 485. 
 Vernon v. West School District, 38 Conn. 
 
 112. p. 468. 
 Verzan v. McGregor, 23 Cal. 339. p. 
 
 364. 
 Viele V. Q-ermania Ins. Co., 26 Iowa, 10. 
 
 p. 2o0. 
 Vliet V. Camphell, 13 Wis. 198. p. 369. 
 Voorhees v. Earl, 2 Hill, 288. p. 312. 
 Voorhis v. Ereeman, 2 Watts & S. 116. 
 
 p. 27 
 Vos V. Robinson, 9 Johns. 192. p. 32. 
 Vosburgh v. Thayer, 12 Johns. 461. p. 
 
 84. 
 Voughton V. Atwood, 1 Modern, 202. p. 
 
 64. 
 
 Wabash, etc., Canal Co. v. Brett, 25 Ind. 
 
 409. p. 270. 
 Waddington v. Oliver, 2 Bos. & Pul. 61. 
 
 p. 312. 
 Wadley v. Bayliss, 2 Tiiun. 752. p. 366. 
 Wadley v. Davis, 63 Barb. 500. pp. 73, 
 
 277. 
 Wadsworth v. Olcott, 6 N. Y. 64. p. 
 
 435. 
 Waito V. Fairbanks, Brayt. 77 p. 874. 
 Wakefield v. Lithgow, 3 Mass. 249. p. 
 
 816. 
 Walcott V. Canfield, 3 Conn. 195. p. 284. 
 Walden v. Sherburne, 15 Johns. 422. p. 
 
 280. 
 Walker v. Barron, 6 Minn. 508. pp. 87, 
 
 106. 
 Wiilker V. Curtis, 116 Mass. 93. p. 82. 
 Walker v. Jackson,. 10 Mee. & W. 161. 
 
 p. 215. 
 Walker v. Mock, 39 Ala. 568. p. 468. 
 Walker v. Moore, 10 Barn. & Cress. 416. 
 
 p. 370. 
 Walker v. Osgood, 98 Mass. 348. p. 295. 
 Walker v. Transportation Co., 3 Wall. 
 
 150. pp. 248, 462. 
 Wall V. East River Ins. Co„ 8 Duor, 264. 
 
 p. 30. 
 Wall V. Howard Ins. Co., 14 Barb. 883. 
 
 pp. 150, 260. 
 Wallace v. Bradshaw, 6 Dana, 382. p. 
 
 286. 
 
 Wallace v. Morgan, 23 Ind. 399. pp. 
 
 34, 112, 289. 
 Wallace v. Telfair, 2 Term Rep. 188. 
 
 p. 291. 
 Waller v. Bank of Kentucky, 3 J. J. 
 
 Marsh. 201. p. 244. 
 Wallis' Case, Cro. Jac. 556. p. 463. j 
 Walls V. Bailey, 49 N. Y. 464. pp. 26, 
 
 49, 53, 54, 74, 392. 
 Wall's Case, L. R. 15 Eq. 18. p. 303. 
 Walsh V. Center, 1 Wend. 185. p, 
 
 306. 
 Walsh V. Frank, 19 Ark. 270. pp. 41, 
 
 291. 
 Walsh V. Homer, 10 Mo. 6. pp. 160, 
 
 248, 254. 
 Walsh V. Mississippi Transp. Co., 52 Mo. 
 
 434. p. 45. 
 Walsh V. Soulhworth, 6 Exch. 156. p 
 
 288. 
 Walter v. Haynes, Ryan & M. 149. p, 
 
 316. 
 Walter, Re, 75 N. Y. 354. p. 97. 
 Walton, Ex parte, 26 L. J. (Ch.) 542. p 
 
 246. 
 Ward V. Everett, 1 Dana, 429. p. 96. 
 Wurfi V. A\'hitney, 8 Sandf. 399. p. 408, 
 AVardo v. Stuart, 1 C. B. (tf. s.) 88. p, 
 
 375. 
 Warden v. Mourillyan, 1 Esp. 693. pp. 
 
 140, 143, 225, 228, 437. 
 Ware v. Hayward Rubber Co., 3 Allen 
 
 84. p. 445. 
 Warhus v. Bowery Savings Bank, 5 Duer, 
 
 67. p. 70. 
 Waring v. Grady, 49 Ala. 465 ; 20 Am 
 
 Rep. 286. pp. 178, 282. 
 Waring v. Grow, 11 Cal. 866. p. 390. 
 Waring v. Mason, 18 Wend. 425. pp. 
 
 808, 809. 
 Warner v. Martin, 11 How. 209. pp, 
 
 238, 290, 292, 293. 
 Warren v. Crew, 22 Iowa, 316. p. 864. 
 Warren v. Franklin Ins. Co., 104 Mass 
 
 518. pp. 267, 465. 
 Warren Bank o. Parker, 8 Gray, 221. p, 
 
 206. 
 Warren Bank i>. Suffolk Bank, 10 Cush. 
 
 582. p. 209. 
 Wauricke v. Noakes, Peake N. P. 68. 
 
 pp. 285, 81K. 
 
TABLE OF CASES CITED. 
 
 Ixvil 
 
 Washington v. The State, 36 Ga. 242. p. 
 
 338. 
 Washington Bank v. Lewis, 22 Pick. 24. 
 
 p. 143. 
 Washington Fire Ins. Co. v. Davison, 30 
 
 Md. 91. pp. 55, 263. 
 Washington, etc., Ins. Co. ». Mechanics', 
 
 etc., Ins. Co., 5 Ohio St. 450. p. 259. 
 Waterpark v. Pennell, 7 H. L. Cas. 650. 
 
 p. 366. 
 Waters v. Lilley, 4 Pick. 145 ; 16 Am. 
 
 Dec. 333. p. 331. 
 Watherell v. Howells, 1 Camp. 34. p. 
 
 271. 
 Watkins v. Eastin, 1 A. K. Marsh. 402. 
 
 p. 74. 
 Wats^on, Ex parte, 19 Ves. 459. p. 284. 
 Watson 11. Brewster, 1 Barr, 381. p. 110. 
 Watsou V. Duylcinek, 3 Johns. 337. p. 
 
 237. 
 Watson V. Peache, 1 Bing. N. C. 327. p. 
 
 202. 
 Watt V. Hatch, 25 Pa. St. 411. p. 317. 
 Waymacli: v. Heilman, 26 Ark. 449. p. 
 
 364. 
 Waymell v. Reed, 5 Term Kep. 600. p. 
 
 365. 
 Wayne v. The General Pike, 16 Ohio, 
 
 421. p. 242. 
 Waugh V. Carver, 2 H. Black. 235. p. 
 
 284. 
 Weall V. King, 12 East, 452. p. 303. 
 Weatherhead v. Sewell, 9 Humph. 272. 
 
 p. 102. 
 Weaver v. Fegely, 29 Pa. St. 27. p. 454. 
 Webb, In re, 8 Taun. 443. p. 140. 
 Webb, In re, 2 J. B. Moo. 500. p. 136. 
 Webb V. Hurrell, 4 C. B. 287. p. 17. 
 Webb V. National Fire Ins. Co., 2 Sandf. 
 
 497. p. 406. 
 Webb V. Plummer, 2 Barn. & Aid. 746. 
 
 pp. 270, 275. 
 Weber v. Kingsland, 8 Bosw. 415. pp. 
 
 41, 236. 
 Webster v. Webster, 1 Fost. &Fin. 401. 
 
 p. 82. 
 Weed V. Barney, 45 N. Y. 344. p. 235. 
 Weed V. Saratoga, etc., E. Co., 19 Wend. 
 
 541, 542. p. 352. 
 Weekly v. Wildman, 1 Ld. Eaym. 407. 
 
 p. 16. 
 
 Weidner v. Schweigart, 9 Serg. & p. 
 
 385. p. 315. 
 Weisser v. Denison, 10 N. T. 68. p. 211. 
 Welch V. Alton, etc., Ins. Co., 10 111. 
 
 225. p. 362. 
 Welcome v. Upton, 5 Mee. & W. 398. 
 
 p. 26. 
 Weld V. Gorham, 10 Mass. 366. p. 207. 
 Wellman v. Nutting, 3 Mass. 434. p. 58. 
 Werner v. Footman, 54 Ga. 128. p. 441. 
 West v. Ball, 12 Ala. 340. p. 292. 
 West V. Cunningham, 9 Port. 104. .p. 
 
 306. 
 West V. Houston, 4 Harr. 170. p. 468. 
 West V. Kelly, 19 Ala. 253. p. 364. 
 Western Transp. Co. v. Barber, 52 N. Y. 
 
 544. p. 238. 
 Westfall V. Singleton, 1 Wash. (Va.) 227. 
 
 p. 400. 
 Westwood V. Bell, 4 Camp. 349. p. 292. 
 Wetherill v. Neilson, 20 Pa. St. 448. pp. 
 
 307, 369, 430. 
 Whedon v. Champlin, 59 Barb. 61. p. 
 
 330. 
 Wheeler v. Newbould, 16 N. Y. 392; 5 
 
 Duer, 26. pp. 45, 310. 
 Wheeler v. Nurse, 20 N. H. 220. p. 443. 
 Wheeler v. Rowell, 7 N. H. 515. p. 332. 
 Whitaker v. Eastwick, 75 Pa. St. 229. 
 
 p. 306. 
 White V. Fuller, 67 Barb. 267. p. 286. 
 White V. Madison, 26 N. Y. 117. p. 291. 
 White V. Mutual Fire Ins. Co., 8 Gray, 
 
 566. p. 407. 
 White V. Nicholson, 4 Man. & G. 95. p. 
 
 270. 
 White V. Sayer, Palm. 211. pp. 172, 273. 
 White V. Ward, 26 Ark. 445. p. 294. 
 White V. Webb, 15 Conn. 302. p. 238. 
 White V. Westport Cotton Man. Co., 1 
 
 Pick. 215. p. 244. 
 White V. Wilson, 2 Bos. & Pul. 116. 
 
 p. 459. 
 White V. Winnisimmet Co., 7 Gush. 155. 
 
 p. 221. 
 Whitehead v. Tuckett, 15 East, 408. p. 
 
 286. 
 Whitehouse v. Moore, 13 Abb. Pr. 142. 
 
 p. 112. • 
 Whitesell v. Crane, 8 Watts & ^S. 369. 
 
 p. 45. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 Whittemore u. Weiss, 33 Mich. 848. p. 
 
 383. 
 Whitmarsh v. Conway Fire Ins. Oo., 16 
 
 Gray, 359. p. 406. 
 Whitmore v. South Boston Iron Co., 2 
 
 Allen, 52. pp. 310, 483, 485. 
 Whitnell v. Gartham, 6 Term Eep. 898. 
 
 p. 340. 
 Whitney v. Boardman, 118 Mass. 243. 
 
 p. 375. 
 Whitney v. Esson, 99 Mass. 308. p. 76. 
 Whitney v. Sterling, 14 Johns. 215. p. 
 
 282. 
 Whiton V. Spring, 74 N. Y. 169. p. 292. 
 Whitwell V. Johnson, 17 Mass. 449. pp. 
 
 205, 207. 
 Widgevy v. Monroe, 6 Mass. 449. pp. 
 
 205, 206. 
 Wigglesworth u. Dallison, 1 Doug. 201; 
 
 1 Smith's LI. Gas. 900. pp. 27, 169, 
 
 268, 273, 337, 344, 430. 
 Wiloocks V. Phillips, 1 Wall. jr. 63. pp. 
 
 24, 36, 286. 
 Wilcox V. Wood, 9 Wend. 346. p. 15. 
 Wiley's Appeal, 8 Watts & S. 244. p. 
 
 294. 
 Wilkes u. Broadbent, 1 Stra. 1224. p. 173. 
 Wilkes V. Broadbent, Willes, 63. pp. 31, 
 
 63. 
 Wilkins v. Wood, 12 Jur. 583 ; 17 L. J. 
 
 (Q. B.) 319. pp. 30, 10-5, 2tJ7. 
 Wilkinson v. Prazier, 4 B^p. 182. p. 283. 
 Wilkinson v. Jett, 7 Leigh, 15. p. 283. 
 Wilkinson v. Lutwidge, 1 Stra. 648. p. 
 
 2n. 
 Wilkinson v. Proud, 11 Mee. & W. 33. 
 
 p. 331. 
 Willard v. Buckingham, 36 Conn. 895. 
 
 p. 284. 
 Willard v. Merritt, 45 Barb. 295. p. 330. 
 Willard v. Nevvburyport, 12 Pick. 227. 
 
 p. 464. 
 Willcoi V. Windsor, 3 Barn. & Adol. 43. 
 
 p. 17. 
 Willets V. Phoenix Bank, 2 Duev, 121. 
 
 p. 205. 
 Willetts V. Paino, 43 111. 433. p. 210. 
 Willey V. Conner, 41 Vt. 68. p. 267. 
 Williams v. Allison, 2 East, 446; p. 806. 
 Williams v. Donaldson, 8 Iowa, 109. p. 
 
 865. 
 
 Williams v. Gilman, 3 Me. 276. pp. 29, 
 
 277. 
 Williams v. Niagara Fire Ins. Co., 50 
 
 Iowa, 561. pp. 45, 56. 
 Williams v. People's Ins. Co., 57 N. Y. 
 
 574. p. 262. 
 Williams o. Spofford, 8 Pick. 250. p. 
 
 308: 
 Williams v. Woods, 16 Md. 220. pp. 289, 
 
 368. 
 Williamson u. Barbour, 37 L. T. (jr. s.) 
 
 698. p. 294., 
 Willings V. Consequa, 1 Pet. C. Ct. 225. 
 
 pp. 303, 305. 
 Willis V. Harris, 26 Texas, 139. p. 277. 
 Willmering v. McGaughey, 30 Iowa, 205. 
 
 p. 448. 
 Willoughby u. Horridge, 74 Eng. Com. 
 
 Law, 742. p. 221. 
 Willoughby v. Moulton, 47 N. H. 205- 
 
 p. 311. 
 Wilmot V. Smith, Moo. & M. 238. p. 
 
 292. 
 Wilson V. Bauman, 80 111. 493. pp. 30, 
 
 54, 103, 104, 277. 
 Wilson V. Kandall, 67 N". Y. 338. p. 
 
 369. 
 Wilson V. Thorpe, 6 Mee. & W. 721. p. 
 
 288. 
 Wilson V. Whitehead, 10 Mee. & W. 503. 
 
 p. 283. 
 Wilson ». Willes, 7 East, 121. p. 31. 
 Wilson V. York, etc., K. Co., 17 L. J. 223 
 
 p. 21--). 
 Wiltshear v. Cottrell, 1 El. & Bl. 674. p. 
 
 272. 
 Wiltshire v. Sims, 1 Camp. 258. p. 287. 
 Winans v. Hassey, 48 Oal. 634. p. 316. 
 Winokesline v. Ebden, 12 Modern, 216. 
 
 p. 65. 
 Winder v. Blake, 4 Jones L. 332. p. 
 
 332. 
 Wing V. Erie, Cro. Eliz. 267. p. 337. 
 Winne v. Nickerson, 1 Wis. 1. p. 82. 
 Winneshiek Ins. Co. v. Holzgrafe, 53 111. 
 
 516. p. 267. 
 Winship v. Bank of JJnited States, 5 Pet. 
 
 561. pp. 280, 283. 
 Winsmore v. Greenbank, Willes, 581. 
 
 p. 247. 
 Winsor v. Dillaway, 4 Mete. 221. p. 76. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 Winsor, Ex parte, 3 Story, 411. p. 288. 
 "Winsor v. Griggs, 5 Gush. 210. p. 301. 
 Winsor v. Lombard, 18 Piclc. 59. p. 
 
 306. 
 Winter v. United States, Hempst. 344. 
 
 p. 453. 
 Winthrop v. Union Ins. Co., Whart. 
 
 Dig. 252. p. 130. 
 Winthrop v. Union Ins. Co., 2 Wash. C. 
 
 Ct. 7. pp. 99, 100, 125. 
 Witbeek v. Holhmd, 45 N. T. 13; 55 
 
 Barb. 443. p. 232. 
 Withnell u. Gratham, 1 Esp. 322. pp. 
 
 366, 463. 
 Witte V. Derby Eishing Co., 2 Conn. 260. 
 
 p. 245. 
 Wilzler v. Collins, 70 Me. 290. p. 225. 
 Wolcott V. Insurance Co., 4 Pick. 429. 
 
 p. 221. 
 Wolfe V. Myers, 3 Sandf. 7. p. 408. 
 Womack v. McQuarry, 28 Ind. 103. p. 
 
 270. 
 Womersley v. Dally, 23 L. J. (Exch.) 
 
 219. pp. 5, 45. 
 Wood V. Augustine, 61 Mo. 46. p. 364. 
 Wood V. Corl, 4 Mete. 205. p. 208. 
 Wood V. Edwards, 19 Johns. 205. p. 361. 
 Wood V. Hiokok, 2 Wend. 501. pp. 52, 
 
 97, 143. 
 Wood V. Milwaukee, etc., E. Co., 27 Wis. 
 
 541. p. 226. 
 Wood V. Pennell, 51 Me. 52. p. 284. 
 Wood V. Phosnix Ins. Co., 37 Leg. Int. 
 
 148. p. 255. 
 Wood V. Poughkeepsie, etc., Ins. Co., 32 
 
 N. Y. 619. p. 267. 
 Wood V. Smith, 23 Vt. 703. p. 53. 
 Wood V. Wood, 1 Car. & P. 59. pp. 3, 8, 
 
 33, 303. 
 Woodruff V. Merchants' Bank, 26 Wend. 
 
 673. pp. 208, 209, 429, 475, 484. 
 Woods V. Galbraith, 2 Teates, 306. p. 
 
 Woods V. Half, 44 Texas, 638. p. 315. 
 Wooly V. Idle, 4 Burr. 1592. p. 463. 
 Worlledge v. Manning, 1 H. Black. 53. 
 
 p. 331. 
 Worthington v. Curd, 15 Ark. 491. p. 
 
 369. 
 Worthington v. Warrington, 8 C. B. 134- 
 
 p. 370. 
 Wray v. Wray, 32 Ind. 126. p. 365. 
 Wright V. Caldwell, 3 Mich. 51. pp. 108, 
 
 216, 218. 
 Wright V. Campbell, 4 Burr. 2046. p. 
 ■ 291. 
 Wright V. Central B. Co., 16 Ga. 38. p. 
 
 324. 
 Wright V. Hart, 18 Wend. 449. p. 306. 
 Wright «. Holcombe, 6 Upper Canadai C. 
 
 P. 531. p. 254. 
 Wright V. Snell, 5 Barn. & Aid. 350. p. 
 
 239. 
 Wyer v. Andrews, 13 Me. 168. p. 333. 
 Wyman v. Fiske, 3 Allen, 238. p. 365. 
 
 Yarborough v. Bank of England, 16 East, 
 
 6. p. 244. 
 Yates V. Duff, 5 Car. & P. 3^69. p. 403. 
 Yates V. Pym, 6 Taun. 446. pp. 8, 192, 
 
 348, 362, 447. 
 Yeaton v. Bank of Alexandria, 5 Cranch. 
 
 49. pp. 53, 122, 205. 
 Young V. Adams, 6 Mass. 157. p. 211. 
 Young V. Axtell, 2 H. Black. 242. p. 
 
 284. 
 Young V. Cole, 3 Bing. K 0. 724. pp. 
 
 284, 287. 
 Young V. Erost, 5 Gill, 287. p. 364. 
 Young V. Stabelin, 34 N. Y. 258. p. 468. 
 Youqua v. Nixon, 1 Pet. 0. Ct. 224. p. 
 
 317. 
 
 Zeigler v. Gray, 12 Serg. & B. 42. p, 
 
 315. 
 Zerrahn v. Ditaon, 117 Mass. 553. p. 89'4, 
 
THE LAW 
 
 O F 
 
 USAGES AND CUSTOMS. 
 
 CHAPTER I. 
 
 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Illustkativb Cases: — 
 
 1. Sewell V. Corp. — A usage must be established. 
 
 2. Wood V. Wood. — A usage must be certain and uniform. 
 
 3. Womersley v. Dally. —'A. custom must be general. 
 
 4. Stevens v. JSeeves. — A usage must be known. 
 
 5. Seagar v. Sligerland. — A custom must be moral. 
 
 6. Paxton v. Gourtnay. — A usage must be reasonable. 
 
 7. Metcalf v. Weld. — Same principle. 
 
 HoTES : § 1 . Definitions — The common-law customs. 
 
 2. The customs of merchants. 
 
 3. Local customs of trade. 
 
 4. Contradictory decisions — Dislike of the judges to extend the 
 
 office of a usage. 
 6. Different views entertained by other judges. 
 
 6. The different kinds of usages and customs. 
 
 7. A common-law custom must be ancient. 
 
 8. But a particular custom or usage of trade is valid if " estab- 
 
 lished." 
 
 9. A common-law custom must be certain. 
 
 10. Likewise a usage of trade must be certain and uniform. 
 
 11. A custom must be compulsciry. 
 
 12. A custom must be consistent. 
 
 13. A custom must be continued. 
 
 14. Acts of accommodation or indulgence do not make a usage. 
 
 15. But cannot be changed to the prejudice of others in some cases. 
 
 16. A common-law custom must be general. 
 
 17. How far generality is required of a particular custom. 
 
 18. A usage must be known. 
 
 1 (1) 
 
ON THE REQUISITES TO THEIR VALIDITY. 
 
 Sewell V. Corp. 
 
 NOTics : § 19. Usages not known to parties not binding. 
 ,20. Usages of the stock exchange. 
 
 21. Customs of servants of corporations. 
 
 22. Customs of merchants to charge Interest. 
 
 23. Customs of banks. 
 
 24. Customs of particular trades and prolessions. 
 
 25. Particular customs not known to Insured inadmissible. 
 
 26. And so of particular customs not known to insurer. 
 
 27. Knowledge of custom — When not presumed. 
 
 28. Person ignorant of a usage cannot take advantage of It. 
 
 29. Proof of knowledge by a single instance. 
 
 30. A custom must be moral. 
 
 31 . A custom must be peaceable, and acquiesced in. 
 
 32. A custom must be reasonable. 
 
 33. Customs beneficial to the public good, though injurious to some. 
 
 34. Customs not unreasonable if simply Inconvenient. 
 
 36. Customs injurious to the public bad, though beneficial to some. 
 
 36. The existence of unreasonable modem usages doubted. 
 
 37. XJsa,ges prima facie reasonable — The test of their reasonableness. 
 
 38. Unreasonable usages — Betweeen vendor and purchaser. 
 
 39. Same — Banks and banking. 
 
 40. Same — Carrier and customer. 
 
 41. Same — Insurance. 
 
 42. Same — Master and servant: employer and employee. 
 
 43. Same — Public officers. 
 
 44. Same — Principal and agent. 
 
 45. Same — Miscellaneous. 
 
 46. The custom of a particular person or the habit of an individual. 
 
 47. Cases where this proof was rejected. 
 
 48. Custom does not make a particular mode of executing a con- 
 
 tract essential. 
 A9. Entries made in the usual course of business. 
 
 1. A USAGE MUST BE ESTABLISHED. 
 
 Sewell v. Corp.* 
 
 Before Best, C. J., in the English Court of Common Pleas, Trinity 
 
 Term, 1824. 
 
 A usage applicable to a particular trade or profession, if established, need not be ancient. 
 
 Assumpsit by a veterinary surgeon for attendance and medicines fur- 
 nished to the defendant's horse. A certificate of the plaintiffs having 
 attended lectures at the veterinary college, signed by Mr. Coleman! 
 the professor there, and several others,' was tendered in evidence on the 
 part of the plaintiff. 
 
 * Reported 1 Car. & P. 302. 
 
A USAGE MUST BE ESTABLISHED, CERTAIN, UNIFORM. 3 
 
 Illustrative Cases. 
 
 Best, C. J. , refused to receive it, on the ground that it did not come 
 from any public body known to the law. 
 
 Mr. Coleman was called as a witness, and asked by the plaintiff's 
 counsel whether, to Ms knowledge, it was the custom to pay veterinary 
 surgeons for attendance as well as medicines. 
 
 Vaughan, Serjt., objected. There is no custom; this is all modern. 
 
 Best, C. J. — They do not mean a custom whereof the memory of 
 man runneth not to the contrary ; but if there is a general usage appli- 
 cable to a particular profession, parties employing an individual in that 
 profession are supposed to deal with him according to that usage. You 
 may cross-examine as to the extent of the usage. With i-espect to vet- 
 erinary surgeons, I know of no law that applies to them particularly. 
 If there is no contract, they must go on a quantum meruit. There is a 
 usage for a broker to have commission. If there is a usage here, it is 
 evidence to regulate the claim. I see no objection to the general ques- 
 tion as proposed. 
 
 Mr. Coleman then stated that the general rule was to charge for 
 attendance when there was not much medicine required. 
 
 Best, C. J. — Such a usage is too uncertain. 
 
 The plaintiff then went on a quantum meruit, and proved several 
 attendances. 
 
 Vaughan, Serjt., contended that, by analogy to the case of apothe- 
 caries, the jury could not legally give anything for attendances. 
 
 The sum of £112s 6d, for the medicine furnished, had been paid 
 into court. 
 
 Best, C. J., left it to the jury to say whether that sum was or was 
 not sufficient for the jjlaintiff's services and medicines. 
 
 Verdict for the plaintiff. Damages, 17s 6d. 
 
 2. a usage mtrst be certain and uniform. 
 
 Wood v. Wood.* 
 
 Before Burrough, J., in the English Court of Common Pleas, Michael- 
 mas Term, 1823. 
 
 The usage oi a particular trade must ba certain and uniform to malse it binding on transac- 
 tions in tbat trade. 
 
 Trovek for cloth. On the part of the plaintiff, after proof of the 
 bankruptcy, it was proved that at the time of his bankruptcy the bank- 
 
 * Beported 1 Car. A P. 69. 
 
ON THE REQUISITES TO THBIK VALIDITY. 
 
 Wood V. Wood. 
 
 rupt had Ms cloth in his possession, he trading in that article, and that 
 the defendant got it into his possession and would not give it up. The 
 defence set up was that the defendant, who was the owner of the cloth, 
 had sent these cloths to the bankrupt for inspection, and that he was, 
 by the usage of the cloth-^rade, to send an answer to the defendant 
 whether he would buy them or not, and that if he did not in three days 
 say that he would buy them, the seller, by the usage of the cloth-trade, 
 was to send for and receive them back again. To prove this usage of 
 the trade, several witnesses were called, all of whom spoke of a usage 
 in the cloth-trade to send goods for inspection ; but some of them spoke 
 of three days as the time within which the buyer was to say whether he 
 would buy them or not ; others spoke of a week, and one of a month, 
 as the time. 
 
 Pell, Serjt., in reply, relied on a case being made out, under the 
 statute of 21 James I., c. 19, of reputed ownership in the bankrupt, 
 and cited a dictum of Lb Blanc, J., in which the judge laid down that 
 if a trader has got goods in his possession, with the option of returning 
 the goods, but does not return them before he becomes a bankrupt, the 
 goods will pass to his assignees, though they made no part of the bank- 
 rupt stock. 
 
 BuRKOTJGH, J. — If goods are in the hands of a bankrupt at the time 
 of his banliruptcy, generally spealdng, they will go to his assignees, 
 under the statute of James, though there is no pretence of any sale to 
 the bankrupt, or that they are really his property. Special facts may 
 take a case out of this general state of things. It has been contended 
 that in the cloth-trade there is a certain usage relative to the return of 
 cloth sent for inspection. Such a usage must, to be binding, be uniform 
 and universal, and not merely the way of dealing at particular houses. 
 It must be so universal that every one in the trade must be taken to 
 know it. If it is not so, it is no usage at all. Here there seems to be 
 no certain rule or usage, for the witnesses do not give it as certain or 
 uniform ; but if there be such a usage, I am of opinion that it would 
 take the case out of the statute of James. 
 
 Verdict for the plaintiff. Damages, £141. 
 
A CUSTOM MUST BE GENERAL. 
 
 Illustrative Cases. 
 
 3. A CUSTOM MUST BE GENEEAL. 
 WOMEKSLEY V. DaLLY.* 
 
 In the English Court of Exchequer, April, 1857. 
 
 Sir Frederick Pollock, Kt., Chief Baron. 
 " James Parke, Kt., 
 " Edward Hall Aldbrson, Kt., 
 
 " Thomas Joshua Platt, Kt., \ Barons. 
 
 " Samuel Martin, Kt., 
 " Georgb William Wilshere Bramwbll, Kt., 
 
 The rule of law as to importing into the terms of a tenancy the eastern of the country does 
 not admit of evidence of the usage of a particular estate or the property of a particu- 
 lar individual, however extensive it may be. 
 
 This was an action by an outgoing tenant against tenants in common, 
 who were assignees of the reversion of part of the demised premises. 
 
 The declaration stated that the plaintiff was tenant to the defendants, 
 on the terms that he should cultivate according to the custom of the 
 country, and that they should, on the termination of the tenancy by 
 notice, pay to him such reasonable allowances as he should, according 
 to the custom of the country, be entitled to receive as outgoing tenant, 
 in respect of work, etc. ; and then averring that the defendants termi- 
 nated the tenancy by notice, and that he was entitled to receive, accord- 
 ing to the custom of the country, a certain sum for work, etc. 
 
 Pleas denying the plaintiff's tenancy to the defendants on the terms 
 stated, and denying that he was entitled to such allowance as alleged. 
 
 On the trial before Martin, B. , at the York Lent Assizes, it appeared 
 that the plaintiff had 'been for fifty years-tenant of a farm of forty 
 acres belonging to an extensive estate, the property of a family of the 
 name of Thornhill, and that the defendants had purchased certain por- 
 tions of the estate, including about sixteen acres, portions of the farm 
 in question, subject to the condition of payment to the outgoing ten- 
 ants of the amount of valuation, according to the custom of the coun- 
 try. The defendants proposed to offer evidence of a usage on the 
 Thornhill estate that in all lettings it should be understood that the ten- 
 ants should keep one-third of their farm arable and two-thirds in grass, 
 and pay £5 an acre, on leaving, for any excess beyond that proportion 
 of arable over grass. The learned judge rejected the evidence, it not 
 appearing that the plaintiff was cognizant of the alleged usage. The 
 plaintiff had a verdict, and the points were reserved. 
 
 ♦Reported 26 L. J. (Exch.) 219. 
 
ON THE REQUISITES TO THEIR VALIDITT. 
 
 Stevens v. Beeves. 
 
 Khowles, for the defendant, now moved for a rule to set aside the 
 verdict, and for a new trial. The evidence of the usage was admissible, 
 on the same principle as that on which evidence of the " custom of the 
 country" is admitted. 
 
 Pollock, C. B. — No. The law takes cognizance of the divisions 
 of the country into counties or parishes, which are legal and public 
 divisions, but not into properties or estates, which are purely private 
 in their nature. Estates may be_very small, and if large are only acci- 
 dentally so. It would be impossible to draw any legal distinction be- 
 tween an estate of one hundred acres or of one hundred thousand, 
 and there would be no legal presumption of notoriety arising from the 
 fact of usage as to terms of letting on a particular estate. UTon constat 
 that the party becoming tenant upon it for the first time would hear of it. 
 
 Knowles. — There was evidence for the jury that the plaintiff must 
 have heard of it. 
 
 Pollock, C. B. — Not a word appears to have been said about it. 
 
 Knowles. — Assuming that the tenant heard of it, his not saying any- 
 thing about it would be evidence of a tacit assent to it. 
 
 Bkamwell, B. — No more than if it were proved that a defendant 
 sued for a debt, always in other cases had dealt on terms of credit. 
 That might be some moral evidence that he had done so on the particu- 
 lar occasion in question, but it would be no legal evidence. 
 
 Per Curiam. — The evidence was clearly not admissible. It was only 
 as to the practice of a particular person in letting his farms — a practice 
 not proved to have been known to the tenant. That being so, the other 
 point does not strictly arise. 
 
 Side refused. 
 
 i. A USAGE MUST BE lOSTOWN. 
 
 Stevens v. Rf.eves.* 
 In the Supreme Judicial Court of Massachusetts, November Term, 1829. 
 
 Hon. Isaac Parkek, Chief Justice. 
 " Samuel Putnam, ■) 
 " Samuel S. Wilde, > Judges. 
 " Marcus Mokton, J 
 
 1. A person oatoring into a contract is not bound by the usage of a particular business, un- 
 less It IS so general as to furnisli a presumption of knowledge, or it is proved that he 
 was acquainted with it. 
 
 • Ileportcd 9 Pick. 198. 
 
A USAGE MUST BE KNOWN. 
 
 lUustratfve Cases. 
 
 2. It was a rule in a, cotton-factory in A., and some neighboring factories, tliat no person 
 employed stiould leave their service without giving a fortnight's notice of his intention 
 to quit. A weaver who did not know of this rule worked in the factory without any 
 agreement as to the terms of service, but was paid by the yard for the work which he 
 turned out. He left the factory without giving any previous notice. Held, that the 
 rule was not binding on him, and that he therefore was not liable to an action for dam- 
 ages by the owner of the factory for thus leaving. 
 
 This was assumpsit for a breach of contract of the defendant in 
 quitting the service of the plaintiff, in which he was engaged as a 
 weaver, without giving a fortnight's previous notice. 
 
 In the Common Pleas, where the parties agreed upon a case, a non- 
 suit was directed ; and the case was brought before this court by ex- 
 ceptions. 
 
 The facts, as agreed by the parties, are as follows : — 
 
 On the 3d of July, 1828, Reeves, the defendant, came to the woollen- 
 factory of the plaintiff, in Andover, and asked the overseer of the 
 weaving-room " if he had a loom idle," and on being answered in the 
 aflSrmative, engaged to work on a loom there. On the second week of 
 Reeves' engagement he left his work at the factory without notice or 
 leave, and was absen* two or three days, and then returned and resumed 
 his work. Reeves was paid for his work by the piece, at the same rate 
 a yard as the other weavers in the same factory. When he had earned 
 about ten dollars, Stevens, at his request, paid him that amount. At 
 the time Stevens made this payment he knew, but not from Reeves him- 
 self, that Reeves had engaged a loom in another factory. About the 
 21st of July, Reeves left the employment of Stevens, without his consent 
 and without having given any previous notice to Stevens. 
 
 No agreement was made between the parties as to the price that 
 Reeves should receive for his labor, nor as to the time that he should 
 continue in Stevens' employment, other than may be implied from the 
 circumstances of the case. It was proved that it was the usage in 
 Stevens' factory to give a fortnight's notice before quitting, and this 
 was generally understood by the workmen. But Reeves had no infor- 
 mation given him of this usage, and there was no notice of it posted 
 up, and is not usually communicated to those who labor in the factory, 
 at the time of their engagement. It was proved that- there was a similar 
 usage in other factories in the vicinity, and that notice of it was com- 
 monly posted up with other rules. In every factory there are certain 
 rules for the regulation of the workmen in respect to their quitting the 
 factory. 
 
 Reeves constantly follows the occupation of a weaver, but at the time 
 when he was engaged by the plaintiff he had just arrived in this country. 
 
ON THE REQUISITES TO THEIR VALIDITY. 
 
 Stevens v. Keeves. 
 
 Stevens sustained an actual damage in consequence of Keeves' quitting 
 his service. 
 
 The case was argued, in writing, by Spaulding for the plaintiff and 
 Crosby for the defendant. 
 
 Spaulding contended that when the defendant entered as a weaver 
 into the sen'ice of the plaintiff, as he made no specific contract, he im- 
 pliedly agreed to serve upon the same terms as the other persons em- 
 ployed in the same factory, and to he bound by the rules of the factory ; 
 and that the defendant, by leaving without notice, broke his contract, 
 and thereby became liable to pay the plaintiff the damages which it i& 
 admitted the plaintiff suffered in consequence. It is obvious that the 
 defendant knew of the usage of the factory in this respect ; otherwise he 
 would not, when he applied for his pay, have concealed his intention of 
 leaving. But he is bound by the usage, whether he in fact knew it or 
 not. Every factory has rules. If he neglected to ascertain the rulea 
 of the factory in which he was going to serve, it was his own fault. 
 The pay which he received was calculated according to the rules of the 
 factory, as he made no special agreement on the subject, and he no 
 doubt could have recovered it according to that r^e. If he is entitled 
 to the benefit of the rules, he ought to be bound by them. The usage 
 of an individual is binding on any one dealing with him, who is ac- 
 quainted with it. But the practice of giving notice is not confined to 
 the plaintiff's factory: it is a general usage in the vicinity. It is a rea- 
 sonable usage, and for the benefit of both parties. Where a person 
 enters into a contract in a particular business, the legal effect of it is 
 regulated by the usages of this business, even where the party is in fact 
 ignorant of them. The present case is somewhat like that of a person 
 dealing with a bank. He is bound by the usage of the bank, even where 
 it changes the legal effect of the contract. The case is also analogous 
 to that of landlord and tenant. The right to notice to quit arises from 
 the mere existence of the relation, without apy special agreement ; and 
 so, in particular places, both landlord and tenant axe bound by the usages 
 of the place in which the land lies. 
 
 Crosby. — The rule of the plaintiff's factory on the subject of notice 
 cannot affect the contract of service entered into by the defendant, as 
 it was not a well-established, general, and uniform usage. The evidence 
 shows the usage to exist only in the plaintiff's factory and others in the 
 immediate vicinity, i The private usages of individuals and corpora- 
 tions — such as of particular carriers, banks, and merchants — are bind- 
 ing on a person who deals with them only where he is acquainted with 
 
 1 2 stark, on Bv. 461, 453; Wood v. Wood, Ph. on Ev. 490; Smith v. Wright, 1 Oaines, 
 1 Oar. & P. 59; Yates v. Pym, 6 Taun. 446; 43; Barber v. Brace, 3 Oonn. 9. 
 
A CUSTOM MUST BE MORAL. 
 
 Illustrative Cases. 
 
 those usages. In the present case, the defendant, who, it is clear, did not 
 know the rule of the plaintiff's factory, could not be bound by it. 
 
 Pakker, C. J. , drew up the opinion of the court. 
 
 This action is brought to recover damages against the defendant for 
 quitting the plaintiff's service in violation of an alleged contract that, 
 having entered into the service, he would not quit it without leave, un- 
 less he had given a fortnight's notice of his intention to quit. 
 
 It does not appear that the defendant engaged his services for any 
 length of time. He asked leave to work at an unoccupied loom; 
 worked a few days, went away, returned in a short time, and worked 
 upon another loom. He was to be paid according to the work turned 
 out, and not by the year, month, or day. There was no stipulation for 
 any particular time ; so that there is no express or implied contract that 
 he would remain for any certain time, unless such contract is to be 
 implied from what is set up in evidence as a usage of this and the neigh- 
 boring factories, that all who are employed shall be held to remain until 
 a fortnight after they give notice of their intention to quit. In order to 
 make this a part of the contract, as the usage supposed is a particular 
 one, and not a general custom, it should have appeared thatjhe defend- 
 ant knew of the usage when he entered upon the work, or before he left 
 it. This is required in order to give effect to a particular usage so as 
 to operate upon a contract. It is so with the usage of banks, and all 
 other usages not of so general a nature as to furnish a presumption of 
 knowledge. There is no such evidence in this case ; on the contrary, it 
 appears that the defendant was a stranger in the country, that he was 
 not informed of any usage, and that no notice of it was posted up 
 among the rules and orders of the factory. 
 
 The cases cited are all either of general usages or of particular cus- 
 toms, of which the party to be bound was proved or presumed to have 
 notice. 
 
 The plaintiff' must be nonsuited. 
 
 5. A CUSTOM MUST BE MORAL. 
 
 Seagak v. Sligerlani).* 
 
 In the Supreme Court of New York, November, 1804. 
 
 In an action by one for the seduction of his daughter, a custom ol " bundling " — i.e., tor 
 persons courting to sleep together — cannot be set up by him to excuse his connivance 
 at the intercourse. 
 
 * Renorted 2 Gaines, 219. 
 
10 ON THE REQUISITES TO THEIE VALIDITY. 
 
 Seagar v. Sligerland. 
 
 This was an action for debauching the plaintiff's daughter, whereby 
 he lost her service and was put to expense in her lying-in, etc. The 
 defendant applied, on a case made and submitted without argument, to 
 set aside the verdict, which was for $450, as being contrary to law, 
 against evidence, and because the damages were excessive. 
 
 At the trial, the plaintiff's principal witness was hie own daughter. 
 She testified that the defendant, after a promise of marriage, frequently 
 lay with her, and at length got her with child; that long before the 
 period the plaintiff and his wife knew that she and the defendant slept 
 together at their house, without forbidding or discountenancing the 
 intercourse ; that before her pregnancy her mother, in particular, had 
 twice seen them in bed together. 
 
 Per Curiam. — From the summary of the testimony, we are con- 
 strained to say there ought to have been a verdict for the defendant. 
 In actions of this nature, the daughter is supposed to be ^'iolated with 
 force, against the will and consent of the father. It is then, and then 
 only, that he is entitled to compensation for the loss of her service. 
 But when he consents or connives at the criminal intercourse, he seeks 
 with very ill grace a retribution in damages. Vbienti not fit injuria. 
 If he be not particeps criminis, he is something very like it. His as- 
 surance in coming here for redress can be equalled only by the indiffer- 
 ence with which he submitted to the sacrifice of his daughter's chastity. 
 We lay out of view the custom which, it is agreed, prevails in that part 
 of the country for young people who are courting to sleep together ; 
 nor can we conceive why this custom has been pressed into the plain- 
 tiff's service. If it furnishes an excuse for his carelessness or his daugh- 
 ter's indiscretion, it is some apology also for the defendant. At any 
 rate, parents who countenance or take no pains to abolish, at least 
 within their own walls, a practice so indecorous or dangerous have no 
 right to complain, or ask satisfaction for consequences which must so 
 naturally follow from it. Nor is it an excuse for the parent to say that 
 promises of marriage had been exchanged. If, under such engagements, 
 he thought there was no harm in permitting what nothing but wedlock 
 itself should have sanctioned, he knew the risk to which his daughter 
 was exposed. These vows might be broken, or the young lady (aa 
 there is too much reason to believe was the case here) might by her own 
 indiscreet behavior justify the lover in transferring his affections to 
 some other object. On the daughter's behavior, however, it is not neces- 
 sary now to dwell, as we are not showing what measure of damages 
 would have been just, but that none at all ought to -have been given. 
 This will more properly become a subject of inquiry if she shall think 
 
A USAGE MUST BE REASONABLE. 11 
 
 Illustrative Cases. 
 
 proper to bring an action for a breach of the marriage promise. The 
 father's conduct is more immediately in question in this suit; and as 
 that was in the highest degree exceptionable, — as he consented to it, if 
 he did not encourage, knew of, and took no means to prevent the connec- 
 tion which has produced this action, — we think it cannot be maintained. 
 The verdict is therefore against law, and a new trial must be had. The 
 judge having refused to nonsuit the plaintiff, as he ought to have done, 
 the costs of the former trial must abide the event of the suit. 
 
 New tried. 
 
 6. A USAGE MUST BE EEASONABLE. 
 
 Paxton v. Courtnat.* 
 
 Before Mr. Justice Keating, in the Court of Common Pleas, London 
 Sittings, Trinity Term, 1860. 
 
 A cnetom or usage of trade must be reasonable, and is not so if it Is sncb as honest and 
 right-minded men would deem unfair and unrighteous. . So held of a usage of under- 
 takers to charge the original cost of articles used at any funeral, although they might 
 be used at other funerals. 
 
 Action against executors for work, etc., done by the plaintiff as an 
 undertaker. Plea: Never indebted except as to £75 paid into court. 
 
 Knowles and Willoughby, for the plaintiff ; Edwin James and T. J. 
 Clark, for the defendants. 
 
 The dispute being wholly as to amount, and turning on the propriety 
 of certain charges on the part of the plaintiff, evidence was tendered of 
 a usage in the undertaking business that undertakers should, in each 
 funeral, charge the entire original cost of certain articles of funeral 
 feature used (gloves, bands, etc.), although they might be used at 
 other funerals. 
 
 Keating, J. — I will not exclude the evidence, but it is a principle of 
 law that a custom must be reasonable ; ^ that is, that it must not be un- 
 reasonable. I shall put that to the jury. 
 
 The evidence was accordingly given, and at the close of the case — 
 
 BJEATme, J., told the jury that in order to find for the plaintiff for 
 
 * Reported 2 Fost. & Fin. 131. 
 
 I In one case Maule, J., said, as illus- hardly be a yalid custom as against a pur- 
 
 trating this principle of law: " It is a usage chaser who bought a fair pottle." See Tay 
 
 in the strawberry business to put all the big lor ». Devey, 7 Ad. & B. 409 ; Jones o. Waters, 
 
 strawberries at the top of the pottJe, and all 5 Tyrw. «61; Sanders v. Jameson, 2 Oar. & 
 
 the bad ones at the bottom ; but that would Kir. C57. 
 
12 ON THE REQUISITES TO THEIK VALIIJITY. 
 
 Metcalf V. Weld. 
 
 the higher scale of charges, on the ground of the alleged custom or 
 usage, they must be satisfied that it was such a custom as was reason- 
 able ; that is, such as was fair and proper, and such as reasonable, hon- 
 est, and righteous men would adopt. If they thought it unrighteous, 
 and so unreasonable, then they ought not to found a verdict upon it. 
 
 Verdict for the defendants. 
 
 7. same principle. 
 
 Metcalf v. Weld.* 
 
 In the Supreme Judicial Court of Massachusetts^ November, 1859. 
 
 Hon. Lemuel Shaw, Chief Justice. 
 " Charles A. Dewey, 
 " Thbkon Metcalf, 
 " George T. Bigblow, • Judges. 
 " Pliny Meueick, 
 " Ebbnkzer K. Hoar, 
 
 A custom of a particular port that seamen's advance wages due under sbipping-articles shall 
 be paid to the shipping- agent, to be paid by him to the boarding-house keeper bringing 
 the seamen, for their benefit, is unreasonable, and does not bind the seamen, althongb 
 known to them at the time of signing the articles. 
 
 Actions of contract by seamen to recover "advance wages" under 
 shipping-articles, in common form, by which "it is agreed between the 
 master and seamen or mariners of the brig LauriUia," etc., "now 
 bound for the port of Boston," etc., "that in consideration of the 
 monthly or other wages against each respective seaman or mariner's 
 name hereunder set, they severally shall and will perform the above- 
 mentioned voyage ; and the said master does hereby agree with or hire 
 the said seamen or mariners for the said voyage, at such monthly wages 
 or prices, to be paid pursuant to this agreement and the laws of the Con- 
 gress of the United States." Answer: Payment. The parties waived 
 a trial by jury, under the statute of 1857, chap. 267, and the cases were 
 heard together in the Superior Court of Suffolk, at the September term, 
 1858, by Morton, J., who signed the following bill of exceptions: — 
 
 " The defendants offered evidence tending to show that it is the cus- 
 tom in the port of Boston, where the plaintiffs were shipped, for 
 owners of vessels to obtain their seamen through a shipping-agent, and 
 
 • Keported U Gray, 210. 
 
A USAGE MUST BE KEASONABLK. 
 
 13 
 
 Illustrative Cases. 
 
 to pay the advance wages agreed in the shipping-articles to the ship- 
 ping-agent ; and that such shipping-agent pays the same to the board- 
 ing-house keeper who brings the seamen to him ; and the boarding-house 
 keeper pays or accounts for the same to the seamen. 
 
 " It was shown that the money, at the time of the shipment, was not 
 paid by the defendants to the shipping-agent, but was charged to the 
 defendants by him on his books, and the amount, together with his own 
 charges, was paid to the agent on a subsequent settlement of the de- 
 fendants' account with him. 
 
 "It was also shown that the plaintiffs in these cases knew of this 
 custom, and that the defendants, according to said custom, paid, in the 
 manner above set forth, to the shipping-agent who shipped the plaintiffs, 
 the sum of $20 each, being the advance wages agreed upon in the ship- 
 ping-articles signed by the plaintiffs. 
 
 "The plaintiffs objected to the above evidence as incompetent, and 
 contended that the written contract excluded parol evidence of such 
 a custom as above set forth ; and that the same, if proved, would be an 
 illegal and unreasonable custom, and contrary to the policy of the 
 law. But the court overruled the objections and admitted the evidence. 
 
 "The court being satisfied that the custom existed, and that it was 
 known to both parties, and that the contract was made with reference 
 to and under it, and that the defendants had paid the advance wages 
 under it to the shipping-agent, ruled that the custopi was a reasonable 
 and proper one, and gave judgment for the defendants in each case." 
 
 C. Q. Thomas, for the plaintiffs. 
 
 J. A. Andrew, for the defendants. — The finding of the court below 
 establishes the existence of the custom relied upon, that the plaintiffs 
 knew of it, that they acted in accordance with that knowledge, and 
 that the defendants paid the money according to the custom. Nothing 
 in the shipping-articles excluded the method of proof of payment which 
 was adopted ; for, taking the articles as they stand, the question was, 
 Were the plaintiffs paid before sailing? Nor is it unreasonable or illegal 
 that owners and seamen should agree to deposit advance wages of sea- 
 m'^n in the hands of a third party, in order to secure to the seamen the 
 benefit of an " advance," and to the owners of the vessel the presence of 
 the seamen when needed. 
 
 Hoar, J. — Three questions arise upon this bill of exceptions : — 
 
 First. Was the payment made by the defendants of the advance 
 wages due to the plaintiffs in these actions the proper subject of a 
 " custom" of the port of Boston? 
 
 Second. Was the custom proved at the trial a reasonable custom? 
 
14 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Metcalf V. Weld. 
 
 Third. Was the payment proved to have been made according to the 
 custom? 
 
 A negative answer to either of these questions would require the 
 judgment of the court helow to be set aside and a new trial granted ; 
 and we are of opinion that neither can be answered affirmatively. 
 
 1. The seamen made a written contract directly with the owners. By 
 the terms of that contract they were entitled to receive a stipulated sum 
 as advance wages. The custom relied on in the defence is a custom for 
 the owners to pay this advance to their shipping-agent, who is employed 
 by them to procure a crew, and for him in his turn to pay it to the 
 boarding-house keeper who brings the seamen to him. It is not a 
 question of the meaning of terms in a contract which have a meaning 
 peculiar to the port of Boston, and known to the contracting parties. 
 The contract is intelligible and complete in itself. It obliges the de- 
 fendants to pay, and entitles the plaintiff to receive, a certain sum of 
 money at a certain time. Under such a contract, we do not think the 
 mode of payment is the proper subject of a custom, and no authority 
 has been cited in support of such a proposition. It would amount to a 
 custom of seamen to employ a certain class of agents — a custom for 
 the owners to transfer the direct personal responsibility resting upon 
 them to another, and perhaps an irresponsible party. There are many 
 usages of trade which have nothing to do with the contracts of parties, 
 and which cannot be set up to modify or control them. It is very cus- 
 tomary for merchants to pay their debts by checks upon a bank; and 
 this may be very well known to persons who deal with them, and yet no 
 one is bound to receive a check in discharge of a promise to pay money. 
 It may be a custom in some kinds of business to pay workmen in or- 
 ders for goods, or in goods kept for sale by their employer, or not to 
 p^y wages punctually at the time they are due, and the fears or necessi- 
 ties of the laborer may induce him to yield to the custom and accept 
 payment in a manner or at a time convenient to the employer; but it 
 would hardly be contended that such a custom could be reg£^rded in 
 determining the legal effect of a written agreement. We fear it would 
 not be difficult to prove a custom in many ports to defraud and impose 
 upon seamen in various ways, — a custom to subject their persons and 
 property to a kind and degree of control which has its origin only in 
 their ignorance and vices, —but these are not the customs which give 
 an interpretation to their contracts. 
 
 2. But if there could be a custom respecting the manner of payment 
 of the plaintiffs' wages, we do not consider the custom proved in these 
 cases a reasonable or proper custom. It is a custom for one of the 
 
A USAGE MUST BJB REASONABLE. 15 
 
 Illustrative Cases — Definitions. 
 
 contracting parties to put himself under the tutelage or guardianship of 
 a particular class of men, and interferes with his right to the direct 
 control and enjoyment of the fruits of his own labor. It' seems to re- 
 quire that the sailor should be in the charge of some boarding-house 
 keeper, and either be in debt to him or bound to deal with him for the 
 future. Unfortunately, this is too often the actual fact. The power 
 which the keepers of boarding-houses for seamen practically exercise 
 over their customers is liable to great abuse, and we cannot think it 
 wise or salutary that it should receive any extension or encouragement. 
 A custom is not reasonable which allows a payment by the owners to 
 their own agent, with a payment by him to some boarding-house keeper 
 to whom the sailor is under no legal obligation, and may not choose to 
 constitute and trust as his agent. A principle nearly analogous was 
 applied in the case of Bowen v. Stoddard. ^ 
 
 3. But, whatever. the nature of the custom, the evidence in the cases 
 before us did not show that it had been complied with. The money 
 was not even paid by the owners to the shipping-agent at the time it 
 was due, but was charged by him in account. It does not appear that 
 the plaintiffs had any relations to a boarding-house keeper, or that the 
 advance wages have ever been paid to any one for their use. If any 
 boarding-house keeper authorized by them to receive the money had 
 actually received it, so that it had gone in any manner to their use, the 
 defence might have been placed upon the ground of agency. But it 
 certainly cannot be maintained that the defendants can discharge them- 
 selves by a mere transfer of their obligation to their own agent. 
 
 Exceptions sustained. 
 
 NOTES. 
 
 § 1. Definitions — The Common-Ijaw Customs. — A custom Is a law estab- 
 lished by long usage.' Common-law customs are either general or particular. 
 General customs are those which prevail throughout the whole country ; partic- 
 ular customs are those which prevail among and affect only the inhabitants of a 
 particular place or the members of a particular class.' General customs are the 
 
 ^ 10 Mete. 381. cence acquired the force ol a tacit and com- 
 
 " Wilcox V. Wood, 9 Wend. S4S. Custom mon consent." Art. 3, chap. 1. 
 
 differs from prescription in this: that while ^ Customs axe eithergeneral or particular, 
 
 prescription is the maliing of a right, cnstom General customs are such as prevail through- 
 
 is the malting of a law. Browne on Usages out a country, and become the law of that 
 
 & Customs, li; 2 Bla. Oomm. 263; Mayor of country; particular customs are such as 
 
 Linn Regis v. Taylor, 3 Lev. 160. The Lou- prevail in some county, city, town, parish, or 
 
 isiana Civil Code defines customs thus: place. The existence of the former ia to be 
 
 " Customs result from a long series of actions determined by the court; thatof the latter 
 
 constantly repeated, which have by such by the jury. Browne on Usages & Ous- 
 
 repetition and by uninterrupted acquies- toms, 7 ; Bodflsh «. Fox, 23 Me. 90. 
 
l(i ON THE REQUISITES TO THEIR VALIDITY. 
 
 General and Particular Customs. 
 
 common law ; and of them, therefore, little will be said, as they do not fall within 
 the scope of this treatise. By them, in numbers of instances, where the legisla- 
 ture had not prescribed express rules, the proceedings and determinations of the 
 English courts were guided and directed; by them were settled and determined 
 the mode in which lands should descend ; the methods by which they might be 
 acquired and transferred; the requisites and obligations of contracts; the rules 
 for the construction of contracts, statutes, deeds, and wills; the remedies for 
 civil injuries, and the like. General customs established such fundamental rules 
 of the common law as these — rules, some of which still exist and have success- 
 fully defied legislative innovation : That the eldest son is the heir to his ances- 
 tor; that a deed, to be valid, must be sealed and delivered; that wills shall be 
 construed liberally, and deeds strictly ; that money lent upon bond is recovera- 
 ble by an action of debt; that breaking the public peace is an offence punishable 
 by fine and imprisonment. These customs, recognized by the courts as the way 
 in which prior facts were dealt with by the people, or by a forgotten law-making 
 power,! became established rules for future guidance. The evidences of those 
 customs which constitute the common law are to be found, then, in the decisions 
 
 of the courts as published In the reports and in the writings of the old authors 
 
 Glanville, Bracton, Britton, Tleta, Littleton, Statham, Brooke, Ktzherbert, 
 Staundford, Hengham, and Coke. 
 
 The particular customs of the English common law will not be discussed here 
 at length, as they are of little interest to the American lawyer, and of little value 
 in a practical text-book of the law as it exists in this country. " These particular 
 customs," says Mr. Browne,=i " which are contrary to the general law of the 
 land, are the remains of a multitude of local customs prevailing, some in one 
 part, some in another, over the whole country, while it was divided into separate 
 dominions. When these separate kingdoms became united under one rule a 
 unity of custom was the inevitable result, and this unity of custom was the cause 
 of our uniformity of laws. The history of law is parallel to the history of race. 
 And, just as many races under one peaceful rule will become one race, —repre- 
 senting in a modified form the peculiarity of each, — so, many systems of laws — 
 or those hypotheses of laws, or provisional laws, customs — will under one rule 
 become one system, which will have the modified characteristics of many of the 
 systems from which it derived its origin. But, further : just as in ethnology we 
 discover instances in which a race, even under the most favorable conditions, has 
 remained distinct and separate in the midst of another race, although living 
 under a common rule, and associated in peace, in intercourse, and in commerce, 
 so we find in the study of jurisprudence that certain customs or systems of 
 laws have remained separate and distinct in the midst of a wide and uniform 
 law, and have retained their characteristic peculiarities in spite of many condi- 
 tions which favored an amalgamation and a unification of these various systems. 
 These so-called customs have in many cases been confirmed to the districts 
 which have the privilege of enjoying them, by various acts of Parliament." 
 
 1 Every custom, it ie said, supposes an act might have enacted is necessarily a good 
 
 of Pailmment or a law made in former times custom ; for such a rule would sustain an 
 
 by an equivalent power, though it were not unreasonable custom. Weekly v WUdman 
 
 called a parliament. Brown on Corp. 29; 1 Ld. Raym 407 
 
 Harland t,. Cooke, Freem. 320. Tet it does » Browne on Usages & Customs, 8. 
 not follow that whatever the legislature 
 
THE COMMON LAW CUSTOMS. 
 
 17 
 
 Particular Customs. 
 
 Instances of these customs are the custom of gavelkind in Kent, by which, 
 amongst other things, all the sons, and not the eldest only, succeeded to their 
 father's inheritance ; the custom of borough English, prevailing in other coun- 
 ties, by which the youngest son inherited the estate in preference to all his 
 elder brothers;' the customs of other boroughs, which entitled a widow to all her 
 husband's lands for her dower, instead of the one-third to which she was entitled 
 by the general law; the customs of manors,^ and the particular customs of the 
 city of London.' As we have said, particular common-law customs are not fre- 
 quently met with in the United States. Some there are, indeed, which even our 
 courts will notice judicially — as, the custom or law of the road, that horses and 
 carriages shall keep to the right side in passing, or the custom as to vessels 
 passing on rivers. Others there are, also, which will be pointed out in a suc- 
 ceeding chapter.* 
 
 > This custom is said to bave been founded 
 on another old custom, which we have re- 
 ferred to further on (post, § 30), and which 
 gave to the lord of the manor tlie riglit of 
 concubinage with his tenants' wives on their 
 weddlng-nigbts. Under such circumstances 
 it was thought that the youngest son would 
 be more certain to be the child of the ten- 
 ant. 
 
 2 Eex V. JoUiffe, 3 Dow. & Ry. 240 ; 2 Bam. 
 & Cress. 54; Davidson v. Moscrop, 2 Bast, 86; 
 WUlcock V. Windsor, 3 Barn. & Adol. 43; 
 Sbeppard v. HaU, 8 Barn. & Adol. 433; 
 Freeman v. Phillips, i Mau. & Sel. 486; 
 Glarkson v. Woodbouse, 6 Term Rep. 412; 
 3 Doug. 189; Regina v. Hale, 1 Per. & Dav. 
 293; 9 Ad. & E. 339; Denu v. Spray, 1 
 Term Eep. 4fi6; Muggleton v. Barnett, 1 
 Hurl. & N. 282; 2 Hurl. & N..653; Anglesey 
 V. Hatberton, 10 Mee. & W. 218; Salisbury 
 V. Gladstone, 9 H. L, Cas. 692; Hanmer v. 
 Chance, 11 Jur. (n. s.) 397; 13 Week. Rep. 
 .386; Portland v. Hill, L. R. 2 Bq. 765; 12 Jur. 
 (N. s.) 286; 16 Week. Rep. 38; Brabant v. 
 Wilson, 35 L. J. (Q. B.) 49; Cort v. Birkbeck, 
 1 Doug. 218; Richardson v. Walker, 4 Dow. & 
 Ry. 498; Richardson v. Capes, 4 Dow. & Ry. 
 612 ; Card v. Callard, 6 Mau. & Sel. 69. 
 
 ' Merchant Tailors' Co. v. Truscott, 11 
 Excb. 855; Salters' Co. v. Jay, 2 Gal. & Dav. 
 414; CoUyer v. Stennett, 5 Scott N. R. 34; 
 Bradbee ti. Christ's Hospital, 6 Scott N. R. 
 79 ; Crosby v. Hetherington, 8 Scott N. R. 637 ; 
 Webb V. Hurrell, 4 C. B. 287; Arnold v. Poole, 
 i Man. & G. 860; Bulbroke v. Goodeve, 1 
 W. Black. 569 ; Magratb v: Hardy, 6 Scott 
 627; Layboum v. Crisp, 4 Mee. & W. 320; 
 Lyons v. Depass, 3 Per. & Dav. 177 ; Hartop 
 V. Hoare, 1 Wils. 8 ; Blacquiere v. Hawkins, 1 
 Doug. 378; Plummer v. Bentbam, 1 Burr.248; 
 Stainton v. Jones, 2 Selw. N. P. 1235; Piper 
 V. Chappell, 14 Mee. & W. 624 ; Bruin v. Knott, 
 12 Sim. 463. 
 
 * Mr. Browne (Usages & Customs, p. 17) 
 points out an analogy between customs and 
 language. " Language," he says, " is for the 
 expressioh of human thought, and, in that it 
 is so, it is also a record of the past effort of 
 human intelligence. Custom, which has 
 arisen from human practice, from the factual 
 language of transactions, is not only a record 
 of the past conduct of men, but is at the 
 same time a vehicle for the expression of 
 intention to those who find usage ready to 
 their hand. But there is a close analogy be- 
 tween the two. As language has passed 
 from unity to diversity and variety, so has 
 law passed from a central unity into a scat- 
 tered and careless variety of custom, so that 
 every place has its particular law of custom. 
 ' Dialects,' says Grimm, • develop themselves 
 progressively, and the morp we look back- 
 ward In the history of language, tbe smaller 
 is their number and the less definite their 
 features. All multiplicity arises gradually 
 from an original unity.' Might we not apply 
 almost the same true words to customs — 
 which, in our estimation, bear an exactly 
 similar relation to a system of law that dia- 
 lects do to a language — that the great Ger- 
 man philologist has applied to dialects, and 
 say that customs have developed themselves 
 progressively, and that the unity which we 
 And in the history of jurisprudence has been 
 developed into the variety of customs which 
 we find at the present time. This capability 
 of change in law is not an indication of its 
 inferiority, but of its vitality. So long as men 
 progress, so long as new events hapx>en, new 
 trades arise, new commerce floats upon 
 hitherto unsailed seas, new manufactures 
 change the features of our lives, and new and 
 higher principles take the place of those 
 which governed conduct, regulated acts, and 
 guided life, so long must we expect progres- 
 sive change and almost lavish variety in our 
 
18 
 
 ON THE KEQUISITE8 TO THEIK VALIDITY. 
 
 The Customs of M»rcliants. 
 
 § 2. The Customs of Merchants. — Most of the general customs of the com- 
 mon law related to land, and the affairs of an agricultural community, but quick 
 
 cxistoms. When a people Is dead,— when 
 there are no transactions to be governed, no 
 rights to protect, no interests to regard, —the 
 law may remain unchanged, lor the law Is 
 dead. We have, indeed, dead laws, just as 
 we have dead languages; and the words 
 of Prof. Max Miiller, which are spoken 
 with regard to the life of a language, are 
 equally applicable when applied to a sys- 
 tem of laws. 'As soon," he remarks, 'as a 
 language loses its unbounded capability of 
 chanp;e, its carelessness about what it throws 
 away, and its readiness in always supplying 
 instantaneously the wants of the mind and 
 heart, its natural life is changed into a merely 
 artificial existence.' We cannot blame our- 
 selves for this digression if it enables the 
 reader more thoroughly to appreciate the 
 relation which exists between custom and 
 law; if it enables him to understand that 
 customs are, as it were, the feeders of law, 
 and that there is always a slow process of 
 customai-y regeneration going on, which wiU 
 be observable to the diligent student of legal 
 history, and which makes up for gradual 
 decay of law which is going on pari passu, 
 and which results from the gradual tendency 
 that almost every fixed enactment has to 
 become obsolete. ' I very much doubt,' said 
 Mr. Disraeli, in liis speech on the Irish land 
 bill (33 & 34 Vict., o. 46), 'the propriety, as 
 a general principle, of legalizing customs. 
 The moment you legalize a custom you fix 
 its particular character; but the value of a 
 cn!«tom is its flexibility, and that it adapts 
 itself to all the circumstances of the moment 
 as of the locality. All these qualities are 
 lost the moment you crystallize a custom 
 into legislation. Customs may not be as wise 
 as laws, but they are always more popular, 
 Xhey array upon their side alike the convic- 
 tions and the prejudices of men. They are 
 spontaneous. They grow out of man's ne- 
 cessities and inventions; and as circum- 
 stances change, and alter, and die oif, the 
 custom falls into desuetude and we get rid 
 of it. But ir you make it into a law, circum- 
 stances alter, but the law remains and be- 
 comes part of the obsolete legislation which 
 haunts our statute-book and harasses soci- 
 ety.' Hansard's Debates, vol. 199, p. 1806, 
 delivered March 11, 1870. * * • One of 
 the most remarkable instances of the con- 
 version of a custom into a law occurred in 
 connection with the Landlord and Tenant 
 (Ireland) Act, 1870 (83 & 34 Vict., c. 46). 
 
 What is most curious in connection with 
 that legislative act is, that it legalized a 
 custom, or a variety of customs, which vary 
 in every county, the real nature of which is 
 only very imperfectly understood. But the 
 fact remains that here has been the recog- 
 nition of a tangible custom, however multi- 
 form, however various, by law— the con- 
 firmation of usage by act of Parliament. As 
 an understanding of the facts connected 
 with the custom of Ulster tenant-right wilt 
 much facilitate the clear comprehension of 
 the propositions set forth above, it may not 
 be inexpedient to describe shortly the claim 
 or right which was conferred upon the ten- 
 ant by this custom, which affected the rela- 
 tions of landlord and tenant in Ireland. The 
 Irish Land Act assumes that a custom which 
 bore upon the relations of landlord and ten- 
 ant prevailed in the province of Ulster, and 
 that it prevailed in forms varying according 
 to local usages. There is, however, no defi- 
 nition of the custom to which the sanction 
 of the law is given. Indeed, men are not 
 agreed as to the nature or extent of the 
 privileges it conferred. As to the character 
 of the custom, Mr. Gladstone, in introducing 
 the bill, said : ' The view we take of it is, that 
 it includes two elements — it includes com- 
 pensation for improvements and it includes 
 the price of good-will. * * * We do not 
 attempt to modify the custom; we do not 
 inquire into its varieties (it is well known t» 
 vary within certain limits) ; we do not at- 
 tempt to improve it or qujilify it; we leave it 
 to be examined as a matter of fact, and when 
 it shall have been so ascertained, the judge 
 will have nothing to do but to enforce it.' 
 Hansard's Parliamentary Debates, vol. 199, 
 p. 365. The attention of the commission of 
 inquiry into the law and practice in rela- 
 tion to the occupation of land in Ireland, 
 which was isstied in 1843, under the presi- 
 dency of the Earl of Devon, was of course 
 directed to the Ulster custom; but even the 
 report gives no very clear and distinct defi- 
 nition of the nature of the custom. In the 
 preface to Lord Devon's digest, which was 
 published after the report of the com- 
 missiun, there are some sentences which 
 throw a little light on the subject. He says: 
 ' The tenant claims what he calls " tenant- 
 right " in the land, irrespective of any legal 
 claim vested in him, or of any improvement 
 ellectcd by him ; ' and further on : ' It is diili- 
 cult to deny that the eifect of the system is a 
 
THE CUSTOMS OF MERCHANTS. 
 
 19 
 
 Definitions. 
 
 upon the heels of commerce came what Blackstone has denominated the " cus- 
 toms of merchants ; " ' that is to say, those rules relative to bills of exchange, 
 partnership, and other commercial transactions, ■which convenience had sug- 
 gested and experience had adopted and made general. Those customs which 
 were seen to be universally and notoriously prevalent among merchants, and 
 
 practical aEantnption by the tenant ol a joint 
 proprietorship in the land, although those 
 landlords who acquiesce in it do not acknowl- 
 edge to themselves this broad fact, and that 
 the tendency is gradually to convert the 
 proprietor into a mere rent-charger, having 
 an indefinite and declining annuity, or the 
 lord of a copyhold. * * * It is, in the 
 great majority of cases, not a reimbursement 
 for outlay incurred or improvements elteoted 
 on the land, but a mere life-assurance or im- 
 munity fi'om outrage. Hence the practice 
 is more accurately and significantly termed 
 "selling the good-will.'" Here, then, it 
 Is evident that the Ulster tenant-right 
 originated in an equity arising to the in- 
 coming tenant from the sanction given by 
 the landlord to his purchase of his farm. 
 A fair and just man could scarcely deprive 
 him of the right of realizing the sum which 
 had been paid with his sanction, and hence 
 arose the obligation to permit him to sell 
 again ; and in this obligation, enforced by 
 public opinion, carried out in public prac- 
 tice, consisted the whole custom of Ulster 
 tenant-right. In Mr. O'Connell's report 
 upon the eifect of the evidence given before 
 the commission, the description of the cus- 
 tom is as follows : ' That, according to the 
 practice of this right, no person can get into 
 the occupation of a farm without paying the 
 previous occupier the price of his right of 
 occupation, or good-will, whether the land 
 be held by lease or at will; that, on the 
 ejectment of any occupying-tenant, he re- 
 serves the full selling-value of his tenant- 
 right, less by any arrears due to the landlord ; 
 that the same custom, unrecognized as it is 
 by law, prevents the lord who has bought 
 the tenant-right, or otherwise got into pos- 
 session of a farm, from setting it at such an 
 Increase of rent as to displace tenant-right. 
 Thus, middle-men are almost unknown, and 
 the effect of competition for land is princi- 
 pally to increase the value of the tenant- 
 right, not the amount of the rent. That 
 ten.int-right exists even in unimproved land, 
 and that five years' purchase is an ordinary 
 payment for the tenant-right of such land, 
 while fifteen or twenty years' purchase. is 
 often given for the tenant-right of highly im- 
 proved farms.' The effect o: the evidence 
 
 of Mr. Senior, who at one time filled the ofSce 
 of assistant poor-law commissioner, before 
 the townland valuation committee, in 1844^ 
 was to the efiect that Ulster tenant-right en- 
 titled the tenant to the difference between 
 the actual rent of his farm and the competi- 
 tion price which could be obtained for it, 
 and that it did not matter whether the dif- 
 ference could be referred to improvements 
 effected by the tenant and his predecessor 
 In title, or to the fact that the farm was held 
 originally at a low rent. He regarded it as 
 an essential ingredient of the custom that 
 the rent should not be raised on the incom- 
 ing tenant, but suggested that the real diffi- 
 culty in understanding the custom was to 
 determine why the landlord did not increase 
 the rent. Here, then, we have a most curi- 
 ous custom, which seems to have imposed 
 restrictions upon the legal right of the land- 
 lord to raise his rents. And we see that that 
 custom has by an act of the legislature 
 become law; that this custom may have 
 resulted from the fact that land increases in 
 value without the interposition of landlord 
 » or of tenant, —an increase which some polit- 
 ical economists have suggested should be ap- 
 propriated to the use of the State, but which 
 has in practice been found so inseparable 
 and indistinguishable from the increased 
 value which has resulted from improve- 
 ments, which were by consent allowed to 
 belong to the tenant, that they have not been 
 distinguished in proprietorship, — and hence 
 the institution, it seems to us, of tenant-right 
 and the gradual limitation of the landlord's 
 ownership. So much for this curious exper- 
 iment, which possesses much interest to the 
 student of the science of jurisprudence. 
 We see here the transformation of custom 
 into statute law. The usual course has been 
 to find custom creeping into the common 
 law through the decisions of the courts; 
 and it may be useful to consider in this 
 place, as preliminary to the main purpose 
 of this work, that branch of the common 
 law which goes by the name of ' customs,' 
 the thorough understanding of which cannot 
 fail to throw light upon the law of usage." 
 Browne on Usages & Customs, pp. 2-5. 
 ' 1 Bla. Comm. 75. 
 
20 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Local Customs of Trade. 
 
 which had been found by experience to be of public benefit, were soolu adopted 
 by the law-merchant, and became a part of the general law of England.' Once 
 recognized by a judicial decision, it was not necessary to prove it or to leave it 
 to a jury in subsequent cases. "People," said Mr. Justice Tostbr, in an old 
 case,* " talk of the custom of merchants. This word ' custom ' is apt to mislead 
 our ideas. The custom of merchants, so far as the law regards it, is the custom 
 of England, and therefore Lord Coicb calls it very properly the law-merchant. 
 We should not confound general customs with special local customs." While 
 these customs were in course of recognition by the courts, it was the practice of 
 the judges to confer on points of mercantile law with persons conversant with 
 the trade. Thus, Lord Chancellor Hardwicke adopted this course in Kroger v. 
 Wilcox,^ and Ms example was followed by Lord Mansfield in a subsequent case, 
 in which an important question had arisen upon a policy of marine insurance. 
 A general custom of merchants, when it is ascertained and established, becomes 
 then a part of the law-merchant, which courts of justice are, as said by Lord 
 Campbbli, in Brandao v. Bamett,^ " bound to know and to recognize. Such has 
 been the invariable understanding and practice in Westminster Hall for a great 
 many years; there is no decision or dictum to the contrary; and justice could 
 not be administered if evidence were required to be given toties quoties to sup- 
 port such usage, and issue might be joined upon them in each particular case." 
 So far, then, it is correctly said,^ as the usages of merchants have been judicially 
 ascertained and established, so far as they have become the acknowledged law 
 of the land, they have ceased to deserve the name of custom, just as much as 
 any other common-law rule which had its foundation in the customs of the 
 country. It is a part of that common law, and is, therefore, not within the 
 scope of this book. 
 
 §3. Local Customs oJ Trade. — But to the local customs of trade — the 
 usages of particular markets or particular ports — the larger part of this volume 
 will be devoted; and the importance of the inquiry may be seen in the frequency 
 with which cases involving the discussion of the admissibility of parol evidence 
 of custom or usage to affect the rights of parties as measured by the general 
 rules of law, or to vary, add incidents to, or explain the meaning of written 
 contracts, have come before the English and American courts within recent 
 years. 
 
 § i. Contradictory Decisions — Dislike of the Judges to extend the Office 
 of a Usage. — The conclusions arrived at in many of the cases are divergent 
 and contradictory, especially in those where the evidence of custom has been 
 offered for the purpose of explaining virritten contracts. This has mainly arisen 
 from a noticeable vacillation in the minds of some of the judges as to the extent 
 to which usages should be admitted in this connection. In an early case. Lord 
 
 ' Brandao v. Bainett, 12 01. & Pin. 806; 2 Edio v. East India Co., 1 W. Black. 29B; 
 
 Hussey v. Jacob, Ld. Kaym. 88 ; Stone v. 2 Burr. 1216. 
 
 Rawlinson, Willes, 661; Benson v. Chapman, '■> Amb. 252. 
 
 8 0. B. 967, note ; Oookendorfer v. Preston, < VaUeJo v. Wheeler, 1 Oowp. US. 
 
 4 How. S17; Magill ti. Brown, Bright. 346; ' 12 CI. & Fin. 806. 
 
 Llckbarrow v. Mason, 2 Term Rep. 73. » Browne on Usages & Customs, IS. 
 
DISLIKE TO EXTEND THEIR OFFICE. 21 
 
 Views of the Judges. 
 
 Bldok expressed a decided opinion that the practice of admitting usage to ex- 
 plain contracts ouglit not to be extended ; but, as we shall see when we come to 
 examine the subject more particularly,' the tendency of the English courts is 
 now decidedly the other way. In the earlier cases, many other English judges 
 manifested grave doubts as to the expediency of the extension of the rule ad- 
 mitting evidence of usage. Thus, in Hutton v. Warren,'^ the court, although 
 deciding in accordance with the authorities, clearly indicated that in their 
 opinion the relaxation of the common law in reference to this matter, where 
 formal agreements had been entered into, and especially instruments under seal, 
 was both unwise and unjust. In Freeman v. Loder,^ Lord Denman, C. J., said: 
 "If a legislator were called to consider the expediency of passing a law upon 
 this subject, the conclusion at which he would arrive is hardly open to a doubt. 
 He would decide at once that the written contract must speak for itself on all 
 occasions : that nothing should be left to memory or speculation. There is no 
 inconvenience in requiring parties making written contracts to write the whole 
 of their contracts, while, in mercantile affairs, no mischief can be greater than 
 the uncertainty produced by permitting verbal statements to vary bargains com- 
 mitted to writing. But the nature of this explanatory evidence renders it pecu- 
 liarly dangerous. Those who have heard it must have been struck with the 
 hesitating strain in which it is given by men of business, and their wish to 
 secure the correctness of their answer by referring to the written documents. 
 Again : what can be more difficult than to ascertain, as a matter of fact, such a 
 prevalence of what is called a custom of trade, as to justify a verdict that it 
 forms a part of every contract? Debate may also be fairly raised as to the right 
 of binding strangers by customs probably unlaiown to them; a conflict may 
 exist between the customs of two different places ; and, supposing all these diffi- 
 culties removed, and the custom fully proved, still it will almost always remain 
 doubtful whether the parties to the individual contract really meant that it 
 should include the custom." Many American judges have expressed their dis- 
 like of this species of evidence. Thus, in 1837, Mr. Justice Story said : " I 
 own myself no friend to the almost indiscriminate habit, of late years, of setting 
 up particular usages or customs, in almost all kinds of business or trades, to 
 control, vary, or annul the general liabilities of parties under the common law 
 as well as under the commercial law. It has long appeared to me that there is 
 no small danger in admitting such loose and inconclusive usages and customs, 
 often unknown to particular parties, and always liable to great misunderstand- 
 ings and misinterpretations and abuses, to outweigh the well known and well 
 settled principles of law. And I rejoice to find that of late years the courts of 
 law, both in England and America, have been disposed to narrow the limits of 
 the operation of such usages and customs, and to discountenance any further 
 extension of them." * And in Donnell v. Columbian Insurance Company,^ he said : 
 " I am among those judges who think usages among merchants should be very 
 sparingly adopted as rules of court by courts of justice, as they are often 
 founded in mere mistake, and still more often in the want of enlarged and com- 
 prehensive views of the full bearing of principles." " Miserable will be our 
 
 1 Post, Chap. IV. * The Iteeside, 2 Sumn. 567 (approved in 
 
 2 1 Mee. & W. 475. Hone v. Mutual Safety Ins. Co., 1 Sandf . 137) . 
 
 3 H Ad. A E. 697. ' 2 Sumn. 367. 
 
22 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Vlew3 of the Judges. 
 
 condition," said Chief Justice Tri,GnM\N, in Stoever v. Whitman,^ " if property 
 Is to depend, not on the contract of the parties, expounded by established prin- 
 ciples of law, but on what Is calle-i the custom of particular places ; so that we 
 may hare different law in every town and village in the Commonwealth." In 
 Bolton V. Colder,'' Gibson, C. J., said: " Nothing should be more pertinaciously 
 resisted than these attempts to transfer the functions of the judge from the 
 bench to the witness-stand, by evidence of customs in derogation of the general 
 law, that would involve the responsibilities of the parties in rules whose exist- 
 ence, perhaps, they had no reason to suspect before they came to be applied to 
 their rights. If the existence of a law be so obscure as to be known to the 
 constitutional expositors of it only through the evidence of witnesses, it is no 
 extravagant assumption to take for granted that the party to be affected was 
 ignorant of it at the time when the knowledge of it would have been most ma- 
 terial to him; and to try a man's actions by a rule with which he had not an 
 opportunity to become acquainted beforehand is the very worst species of 
 tyranny." In Cox v. O^Biley,^ Perkins, J., said: "Were the courts by their 
 decisions to encourage the growth of these local usages, originating generally in 
 lax business practice or mistaken ideas of law, they might become as great an 
 evil, a source of as much want of uniformity in the law, as was the local legis- 
 lation of the past — an evil supposed to be eradicated from our political system 
 by the new Constitution." In Harper v. Pound,* Stuart, J., said : "To permit 
 the temporary or indolent usages of each locality to control contracts would 
 be to make contracts conceived in the same language, and relating to the same 
 subject-matter, one thing in one place and another in another. A contract for 
 ' clearing ' land might thus be made to mean one thing in Posey County and 
 quite another in Steuben or Lake. In one locality the word 'clearing' might 
 mean to take out the stumps ; in another, to clear off everything but the stumps ; 
 and in another, to clear off such timber as was eighteen inches and under. And 
 the same contract, in precisely the same words, would mean each of these things 
 in the respective localities. This would create a body of local laws far more 
 intricate and embarrassing in judicial investigations than the local statutes with 
 which the State was formerly inundated. The recognition of these local usages 
 is, as a general rule, contrary to the public policy of this State. Our Consti- 
 tution and judicial decisions are hostile to local legislation and local customs. 
 The policy of the State is to have all her localities a unit : the same law and the 
 same rule of decision prevailing everywhere throughout the State." In Strong 
 V. Ch-and Trunk Railway Company,^ Cooley, C. J., said: " Special customs are 
 so liable to create confusion of legal rules in directions not contemplated in 
 their adoption, that they are admitted into the law with great reluctance ; and it 
 is not often a hardship to parties to reject a custom, so long as they are left free 
 to make their own bargains, and can incorporate it in their contracts if they see 
 fit to do so." In Dykers v. Allen,^ Senator Wright said : " To allow the usages 
 of Wall Street to control the general law in relation to any matter might res°ult 
 in the establishment of principles not always in accordance with sound morals. 
 I prefer that legal principles should have a universal application, and that con- 
 
 1 6 Binn. «7. < 10 Ind. 32. 
 
 ! 1 Watts, 360 (1833). 6 15 Mich. 206 
 
 »41iici. 368. MHill, m. 
 
DISLIKE TO EXTEND THEIR OFFICE. 
 
 23 
 
 Conflicting Views. 
 
 tracts should receive tlie same interpretation in the thronged and busy mart of 
 a. commercial metropolis that they do elsewhere." In Partridge v. Insurance 
 Company,^ Mr. Justice Millbr said: " The tendency to establish local and lim- 
 ited usages and customs in the contracts of parties, who had no reference to 
 them when the transactions took place, has gone quite as far as sound policy can 
 justify. It places in the hands of corporations, such as banks, insurance com- 
 panies, and others, by compelling individuals to comply with rules established 
 for the interests alone of the former, a power of establishing these rules as 
 usage or custom, with the force of law." In Barlow v. Lambert,'' Stone, J., 
 after citing with approval the language of Mr. Justice Story in the case of The 
 Beeside, a,ddeA: "The Constitution, in the distribution of the powers of the 
 government, having conferred the legislative power on the General Assembly, 
 the question may arise. Under what authority, by what warrant, are we brought 
 under the dominion of other rules of action? Is it sound, is it consistent with 
 our government, that any portion of the community less than the whole — any 
 city, town, village, or neighborhood — shall exercise powers which the Consti- 
 tution has conferred alone on the General Assembly? Shall such portion of the 
 community make unto themselves a law which shall overrule the general law ? 
 It becomes us to feel our way cautiously, lest there grow up in our midst some 
 third estate which shall in time usurp the government." ' 
 
 § 5. Different Views entertained by other Judges. — But other judges and 
 courts have thought differently. " We know," said the Supreme Court of Ver- 
 mont, in Chapman v. Devereux,* " that usage and custom will accomplish every- 
 thing except impossibilities." " Usages," said Hubbard, J., In Macy v. Whaling 
 Insurance Company,^ "become laws by their frequent repetition, their reason- 
 ableness, their adaptation to promote the interests of the parties engaged iu the 
 business to which they are applied, and by their common adoption in the com- 
 munity among those interested. They are the results of the sound common sense 
 of practical minds engaged in the same business : each party, whether buyer or 
 seller, giver or receiver, having his own as well as the common advantage in 
 view." In J^llis v. Ohio Life Insurance Company,^ Kanistby, J., said: "No court 
 has been more reluctant than this to allow local customs to interfere with the 
 general principles of law ; but to a certain extent, and within certain limits, it 
 becomes absolutely necessary to enforce them or to disregard the implied con- 
 ditions and understandings upon which parties have dealt. To allow them to 
 operate against third persons who cannot be shown to have had any knowledge 
 of their existence is one thing, and to hold the immediate parties to the contro- 
 versy bound by a course of business upon which they have uniformly acted, or 
 
 1 15 Wall. 573. Clare that custom might make law, would 
 
 2 28 Ala. 704. not this be an unauthorized delegation ol 
 5 In a Virginia case it is said that, as the power? Would not such a law be void lor 
 
 Constitution vests the whole law-making want of power in the Legislature to dele- 
 power in the Legislature, It is difficult to see gate to a tew men the right to mak^ a law 
 how a few individuals can make a law by by getting up a custom? Delaplane v. 
 custom which is to bind all. Why should Crenshaw, 15 Gratt. 457. 
 the people be forced to submit to a law * 32 Vt. 616. 
 which has never been assented to by them ' 9 Mete. 354. 
 through their proper representatives? And ' 4 Ohio St. 638. 
 even were the Legislature to expressly de- 
 
'24 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Conti-adictoiy Views. 
 
 one embarked in a particular business at a place where it lias been found neces- 
 sary to its sale or convenient prosecution that a general custom should be 
 observed, under obligations to conform to it, is quite another. Every one en- 
 gaged in a business undertakes to bring to it a competent knowledge of its rules 
 and principles, and those who deal with him have a right to rely upon his having 
 regarded them." In Clark v. Baktr,'^ Djswby, J., said: "The extent to which 
 local usages of trade are to be applied in the construction and effect to be given 
 to contracts, is a matter by no means free from difficulty. These usages differ 
 essentially from those more general customs which are known and exist as part 
 of the general law of the land, and which are observed and applied without 
 being established by evidence offered in, each particular case. These local 
 usages may be of comparatively recent origin, and may be limited to a single 
 city or village; and yet, if reasonable in their prbvisions, and so generally 
 adopted by those concerned in any peculiar branch of business as to authorize 
 the presumption that they are known by those who are dealing as vendors and 
 vendees in that branch of trade or business, the dealings and contracts of such 
 persons are considered to have been made in reference to such usages and to 
 be governed thereby. Learned jurists have often expressed their regret at the 
 extension of this species of evidence, and especially that as to usage of a local 
 and limited character, as impairing in some degree the symmetry of the law, and 
 tending 'to uncertainty and embarrassment in the administration of justice ; and 
 also liable to the serious objection that the knowledge by the party to be affected 
 by it, of the existence of such usage, is a mere legal presumption which may 
 often be unfounded in reality, although such u^age is established by what is 
 deemed competent legal evidence. Notwithstanding these objections, such local 
 usages have been held admissible by the judicial tribunals as competent to ex- 
 plain and qualify the contract, and give to it an effect materially different from 
 that which the general law would have done in the absence of all evidence of 
 such usage." In Wilcocks v. Phillips,^ Baldwin, J., said of usage: "Its in- 
 fluence is universal. It attaches to nations and to individuals. It creates obli- 
 gations. It interprets laws. General custom is a general law, and forms the law 
 of contracts; and this, sometimes, though it be at variance with their terms. It 
 controls even the principles of law. Thus, the right to the waygoing crops, 
 days of grace, and time of protest are regulated by the usage of the place or 
 bank, and affect even those who have no notice of the custom. The ancient, 
 established, uniform, and known custom of persons engaged in any trade makes 
 a law for that trade, though it is not applicable to other trades. It is their way 
 of doing business. It is the rule to which all who enter that trade are under- 
 stood to consent. It makes, supplies, and construes their contracts. Known and 
 settled usage ought to be respected by courts and juries, unless such usages are 
 against the laws or policy of the country ; otherwise our dealings with foreigners 
 in foreign lands will fall into disorder and confusion." Speaking of the effect 
 of usages and customs on the law of common carriers, Thompson, C. J., said : 
 "Every day the old rule is being gradually modified by contract, usage, or 
 notice, to fit it to the new order of business in that line. Indeed, the whole 
 system of the law of common carriers grew out of customs, moulded into form 
 and made practical by the courts in England ; and hence for a long time, when 
 
 1 11 Meto. 188. « 1 Wall. jr. 63. 
 
VIKWS OF THE JUD«KS. 25 
 
 Opinions favoring their Admission. 
 
 suits were brought against persons engaged in the carriage of goods and mer- 
 chandise, the action was called an action upon the custom of the realm. In 
 modern times the practice is to sue upon the contract. It would be sti-ange if 
 the process of improvement by custom and usage is to stop just here and go no 
 further. I regard it as a matter not debatable at this day, that a custom so long 
 persisted in as to be known and practised by a community shall not become the 
 law of the particular business in which it exists in the community, from which a 
 presumption will arise that it is in the view of the parties who contract about 
 the subject-matter of it, and depend that it will be the interpreter of their con- 
 tracts whenever they leave room for a resprt to it. In other words, when the 
 express terms of the contract do not exclude it, usages of this kind in trade, 
 which have a like effect when clearly established, are generally found in practice 
 to exhibit a superior adaptedness to the convenience and wants of the commu- 
 nity to those which are superseded by them, and In this way development and 
 progress result. It is hardly necessary to say that all usages that become cus- 
 toms must be reasonable ; but it is not likely, in modern times, that anything else 
 would be suffered to grow into a custom ; nor that it must be continued, for 
 otherwise it would never become a custom; still, both these elements are requi- 
 sites, and also that they be generally acquiesced In by all acting within the scope 
 of their operations." ' And Lord Campbell, in the leading case of Humfrey v. 
 Dale,'' has pointed out that, however much the courts may shrink from giving to 
 the usages of trade their place in the law, they cannot well refuse to recognize 
 them without injury to those among whom they exist. " Lawyers," he says, 
 " desire certainty, and would have a contract express all its terms, and desire 
 that no parol evidence beyond it should be receivable. But merchants and 
 traders, with a multiplicity of transactions pressing on them, and moving in a 
 narrow circle and meeting each other, desire to write little, and leave unwritten 
 what they take for granted in every contract. In spite of the lamentations 
 of judges they will continue to do so, and in a vast majority of cases, of which 
 courts of law hear nothing, they do so without loss or inconvenience ; and, upon 
 the whole, they find this mode of dealing advantageous, even at the risk of occa- 
 sional litigation." The later English cases show that, in more recent times than 
 those to which Mr. Justice Story referred, there has been a tendency on the 
 part of the English judges to extend the office of a usage, and to supply words 
 and incidents In a written contract which are not inconsistent with It. Looking 
 to the intention of the parties as the primary object, they have come to the con- 
 clusion that this intention is better ascertained by a careful regard to the 
 circumstances of the parties at the time of the contract than by a slavish 
 adherence to the written words of the instrument.' Consequently the functions 
 of customs have, in England, been much extended of late years; and leaving 
 out of view the older cases where evidence of usage was rejected,* as at least 
 impliedly overruled by recent adjudications, the English cases are easily recon- 
 cilable. In America, however, this is unfortunately not the case. The deci- 
 sions in this country, even of late years; present no uniformity, but are liberal 
 or strict in admitting evidence of usage, according as the judges concluded to 
 follow the earlier or the later English precedents. 
 
 1 McMasters U.Pennsylvania R. Co., 69 Pa. 'Browne on Usages & Customs; post, 
 
 St. 374. Chap. IV., notes to Humfrey v. Dale. 
 
 = 7 El. & Bl. 266; post. Chap. IV. * As Greaves v. Ashlin, 3 Camp. 426. 
 
26 ON THE KKQUISITES TO THEIK VALIDITY. 
 
 The different Kinds of Usages and Customs. 
 
 § 6. The different Kinds of Usages and Customs. — We have now seen that 
 common-law customs are of two Isinds — general and particular; that the former 
 ai-e a part of the common law, and that the latter must be proved by witnesses, 
 unless required by statute to be judicially noticed by the courts. We have seen, 
 likewise, that the customs of merchants are both general and local, and that the 
 former are a part of the common law, while the latter must be proved by evi- 
 dence. One branch of our subject alone remains, viz. : the usage of a particular 
 person. Laying aside the general common-law customs and the general customs 
 of merchants, we divide the usages and customs of this treatise Into three 
 branches, viz. ; (1) particular customs, or the usages of particular places ; (2) 
 usages of trade, or the customs of particular trades or occupations ; and (3) cus- 
 toms of particular persons. Though the latter word has strictly a different 
 signification, "usage" and "custom" have come to be used as synonymous 
 and convertible terms, and will be so used in these pages.' 
 
 I. A particular custom is a custom which affects only the inhabitants of a 
 particular place. 
 
 II. A usage of trade is a uniform practice applied to modes and courses of 
 dealing in a certain business or occupation. 
 
 III. A custom of a particular person is the habit of an individual.^ 
 
 In the following pages we shall endeavor to state the law applicable to usages 
 and customs, the rules of evidence which will enable the practitioner to prove 
 them in given cases, the rules of law which will enable him to determine their 
 legality when their existence is established, and the principles which vrill enable 
 him to place upon them the correct legal construction. 
 
 § 7. A Common-Iiaw Custom must be ancient. — A common-law custom must 
 have existed so long that the. memory of man runneth not to the contrary.' If a 
 usage could be shown to have commenced, it was void as a custom. Every cus- 
 tom, of course, must have had a commencement, but if its inception could be 
 discovered, then the individual by whose particular will the custom had Its 
 birth would be discovered; and it was a maxim that no one man could be allowed 
 to make a law, but that a custom could only have its origin in the will of the 
 whole. The time " whereof the memory of man runneth not to the contrary" 
 received a technical limitation, and was understood to refer to the commencement 
 of the reign of King Richard I.' 
 
 ' See, in support of this, WaUs v. Bailey, < The origin and hlstorv of legal memory 
 49 N. Y. 464; Diokiason v. Gay, 7 Allen, 82; is described in a note to tlie case of Cassidy 
 Jewell V. Eailway Co., 55 N. H. 84. v. Stewart, 2 Man. & «. 437, thus: "At com- 
 2 Post, § 46. men law, a person suing for a freehold was 
 s A custom must have been time out of bound to show that he or hia ancestor had 
 mind; for if any one can show where it been in possession within the time of mem- 
 begun, it is not a good custom. 1 Dune's ory; that is, within the memory of a person 
 Abr., chap. 26, art. 1 ; Bex v. Johns, Loltt, 76; living, or of his father, who, if not present 
 Eex V. Joliffe, 2 Barn. & Cress. 54; Jenkins at the actual feoffment or investiture of the 
 V. Harvey, 1 Cromp. M. & R. 877; Simpson v. party disseized, had seen him in the peace- 
 Wells, L. E. 7 Q. B. 214; Duke of Beau- able seisin of the land, and acting as one of 
 lort V. Smith, 4 Exch. 450; Master Pilots, theporesof the lord's court— the rule of law 
 etc., V. Bradley, 2 EI. & Bl. 428; Bailey v. formerly being that no man could prove any 
 Appleyard, 3 Nev. & P. 257 ; Scales v. Key, H matter unless it had been seen by himself or 
 Ad. & E. 819 ; Welcome v. Upton, 5 Mee. & by his father, who had enjoined him to tesfify 
 ^- ^^^- the fact. Brae, lib. 5, c. 5, § 8, fol. 373 u, 2 
 
A CUSTOM MUST BE ANCIENT. 
 
 a? 
 
 This Rule not applicable in America. 
 
 Although in a few American cases ' it has been loosely laid down that one of 
 the essential elements of a valid custom or usage in the United States is that it 
 should be " ancient," it is obvious that the English rule could never have any 
 application here. As the " time whereof the memory of man runneth not to the 
 contrary" is defined, as we have seen, to mean the beginning of the reign of 
 Richard I., this is suflScient to stop all Inquiry into American common-law cus- 
 toms, for the excellent reason that this country was not discovered until several 
 hundred years later.'^ 
 
 Inst. 94. It being found inconvenient to 
 leave the rights ol parties dependent on the 
 longevity of witnesses, it was thought desir- 
 able to remove this uncertainty without 
 materially enlarging or abridging such 
 rights. The first fixed epoch appears to 
 have been the accession of Henry I. (on 
 the 1st of August, 1100). So matters con- 
 tinued until 1235, when it was thought 
 that a period of one hundred and thirty- 
 five years was an unreasonable substitu- 
 tion for the reach of human memory, occa- 
 sionally prolonged by the injunction above 
 referred to — from its nature, of too rare 
 occurrence materially to aSect the period of 
 limitation. By the Statute of Merton (1235), 
 c. 6, an epoch more nearly approaching the 
 actual duration of human remembrance was 
 introduced, viz., the coronation of Henry 
 II., which had taken place eighty-one years 
 before, namely, on the 20th of October, 1154. 
 In ISi'o the eighty-one years bad swollen to 
 one hundred and twenty- one years; which, 
 being considered an absurdity, a new epoch 
 was introduced, viz., the time of Richard I. — 
 i.e., his coronation in 1189, being eighty-six 
 years before. This continued unaltered until 
 1540, when the more convenient rule of sixty 
 years before action brought was introduced. 
 During the whole interval between 1375 and 
 1540, the coronation of Bichard I., in 1189, 
 was the period of legal memory in respect to 
 writs of right, shorter periods being adopted 
 with respect to the limitation of possessory 
 actions. From the very frequent recurrence 
 of this as the longest period of limitation, in 
 the discussion which took place daily in this 
 court (Court of Common Fleas) in respect of 
 real actions, it was thought convenient by 
 the judges that in all cases of customary 
 or pre! »riptive rights depending upon the 
 memory of man the same epoch should be 
 resorted to. And this usage, resting solely 
 upon an arbitrary introduction of a rule of 
 analogy resting upon the statute of Edward 
 I. In 1276, had become so inveterate before 
 1540 that when, the statute of 1275 was re- 
 pealed, in 1540, a rule which had no other 
 foundation than the repealed statute was 
 
 tacitly allowed to remain, and it has contin- 
 ued down to our own times. Vide 2 & 3 Wm. 
 IV., c. 71." Co. Lit. 115 a; Browne on Usages 
 & Customs, 15. If all evidence of the com- 
 mencement of a custom was wanting, proof 
 that it had been practised for a long time, 
 and that it had been observed as far back as 
 the memoi-y could reach, amounted to pre- 
 sumptive proof that it prevailed during the 
 whole period of legal memory. Ibid.; Lenck- 
 art V. Cooper, 7 Oar. & P. 119; Scales v. Key, 
 II Ad. & B. 819. The English law requiring 
 proof of the immemoriality of a custom has 
 been considerably modified by the statute 2 
 & 3 Wm. IV., c. 71, which provides, as to cus- 
 tomary and presumptive claims of rights to 
 be exercised over the land of other persons 
 (such as the rights of common, or way, or 
 use of light), that they shall be considered as 
 sufficiently established by an uninterrupted 
 enjoyment as of right in some cases for 
 thirty, in others for twenty years, and shall 
 not be defeated where such enjoyment can 
 be proved by showing that they commenced 
 within the time of legal memory. Shelf. 
 Real Prop. Stats. (7th ed.) 2, 6; Hanmer v. 
 Chance, 11 Jur. (N. s.) 397; Shnttleworth v. 
 Le Fleming, 19 C. B. (N. s.) 687. And see 
 notes to Cassidy v. Stewart, 2 Man. & (i. 437. 
 
 1 As in Shaw v. Ferguson, II Cent. L. J, 106. 
 
 2 See Ackerman v. Shelp, 8 N. J. L. 125; 
 Allen V. Stevens, 29 N. J. L. 509; Stevens v. 
 Patersou, etc., B. Co., 34 N. J. L. 532. But see 
 Rust V. Low, 6 Mass. 90. It is held in Vir- 
 ginia that a custom in opposition to the 
 common law, however general it may be, 
 has no force in that State, because it must 
 necessarily lack the necessary element of 
 antiquity. Therefore the Supreme Court 
 of that State, in 1836, refused to consider 
 a custom that the outgoing tenant should 
 have the waygoing crop, as was held in 
 England in Wigglesworth u. Balllson, post. 
 Chap. III. Particular customs, they said, 
 were valid in England, preventing the appli- 
 cation of the common law to the county or 
 district in which the custom prevails by 
 showing that the common law as to the 
 subject never had any existence there. A 
 
28 
 
 ON THE KEQOISITES TO THEIB VALIDITY. 
 
 A Usage of Trade must be "Established.' 
 
 § 8. But a particular Custom or Usage of Trade Is valid If " established." 
 
 But, as was laid down by Chief Justice Best in Sewell v. Oorp,^ the element of 
 
 custom, to be valid, must be as old as the 
 common law; but if the particular custom 
 was proved to be immemorial, it necessarily 
 excluded the general custom or common 
 law, because the two, being inconsistent, 
 could not stand together. But the settlers 
 of this country and State brought with them 
 the common law or general customs of Eng- 
 land, but none of the particular customs. 
 The common law thus became the law of 
 the State, and any custom introduced since 
 its settlement, in opposition to the common 
 law, can have no force, since it lacks the 
 essential ingredient of a good custom —it is 
 not immemorial. It could not have existed 
 until after the setttlement of the country, 
 and after the common law had attached to 
 every part of it. And as a recent usage It 
 could not change the common law. Harris 
 V. Carson, 7 Leigh, 632. This argument was 
 approved in a more recent case In that State 
 (Delaplane u. Crenshaw, 15 Gratt. 457), in 
 which it was said {per Lee, J.): "This 
 opinion, concurred in by all four of the 
 court who were present, would seem to be 
 conclusive upon the question in this case. 
 Nor do I feel at all prepared to advance a. 
 different one. That a custom to displace 
 the common law must be immemorial, and 
 that the time of memory runs bact to the 
 reign of Richard Coaur de Lion, are maxims 
 of such ancient, universal, and familiar 
 acceptation in the English law that It is now 
 quite too late to controvert their correct- 
 ness. And although this period was that 
 fixed for the limitation of the writ of right 
 by the Statute of Westminster 1st, which 
 was afterwards reduced to sixty years by the 
 statute of 32 Hen. VIII., a. 2, I am aware 
 of no change made in the mode of estimating 
 the period during which, to be good, a custom 
 must be said to have continued. It is true 
 that it has been made the subject of regret 
 and complaint that the time of legal memory 
 was not shortened by the courts of law, upon 
 the same reason which led to the reduction 
 of the period of limitation, yet that it 
 remained unchanged is everywhere con- 
 ceded. See Best on Prosurap. 187; Oru. 
 Dig., tit. 31, chap. 1; 2 Greenl. on Ev., § 538; 
 Coolidge V. Learned, 8 Piolt. 504. I am aware 
 that cases are to be found in which regular 
 usage short of the prescribed period has 
 been held to be sufBcient evidence of the 
 
 custom alleged, and, where uncontradicted 
 or unexplained, deemed sufficient to author- 
 ize a jury to find the existence of an imme- 
 morial custom. But they do not contradict 
 the general rule, as they wiU be found to 
 depend upon the artificial doctrine of pre- 
 sumptions, which has been introduced in 
 part, or at least taken advantage of, to evade 
 the rule of legal memory and remedy the 
 inconvenience attributed to the omission of 
 the courts to shorten the period by analogy 
 to the reduction of that of the limitation of 
 the writ of right. But this doctrine cannot 
 be applied to a subject like this. It may not 
 be confined to incorporeal hereditaments, 
 but may extend to real estate also; but this 
 falls within neither description; and the 
 presumption of a grant is not a rule of law, 
 but is to be the basis of a finding as to a fact 
 by a jury. Moreover, it can only be made 
 where the thing lies in grant, and where 
 there is a party by whom the grant could be 
 made, as well as one to receive it. Such a 
 right as this could not be the subject of a 
 grant; nor is there any one who could be 
 supposed to have made it, nor any one who 
 could be supposed to have accepted it. The 
 millers of the present day cannot be bound 
 by the concessions of those of former years, 
 because in no legal sense can the latter 
 occupy the relation of ancestors or prede- 
 cessors to them ; nor can the inspector of this 
 day claim to have derived any such right by 
 succession. His rights grow out of the 
 statute, and not of any relation in which he 
 can be supposed to stand to those who may 
 have happened to precede him in the office. 
 In reference to those cases in which a jury 
 has been advised to presume a usage to have 
 been immemorial from proof of its continu- 
 ance for a shorter period than that of legal 
 memory, it must be observed that this was 
 where the usage was uncontradicted and 
 unexplained, and its origin not shown to 
 have been within the prescribed period. 
 This, however, may always be done, and the 
 presumption that the custom was imme- 
 morial thus repelled. Nor is it necessary 
 that its origin, or a time when it did not 
 exist, must be shown by the memory of some 
 living witness; for the 'memory of man' 
 which is spoken of is not to be understood 
 as merely living memory, but memory by 
 the means of records or other written me- 
 
 ' 1 Car. & p. 802 (1824), ante, p. 3. 
 
A CUSTOM MUST BE ANCIENT. 29 
 
 Usages of Trade Valid if Established. 
 
 antiquity need not attach to a usage of trade. Thirteen years later, Serjeant 
 Stephen called time a pillar of a common-law custom, but admitted that age was 
 not essential to a usage of trade.' Even as early as 1780, in the frequently cited 
 case of Noble v. Kennoway,^ Lord Mansfield said: "Every underwriter is pre- 
 sumed to be acquainted with the practice of the trade he insures, and that 
 whether it is recently established or not. If he does not know it, he ought to 
 Inform himself. It is no matter if the usage has only been for a year." And on 
 the construction of a marine policy In the trade to Labrador, which was first 
 opened to English shipping after the Peace of Paris, and had been carried on but 
 three years, he held that a custom which had been invariably observed ever since 
 its opining was as binding on those who shipped on Labrador risks as though 
 the trade itself had been of much longer continuance. To the same effect are 
 the American adjudications. In an early Maine case, the court refer to a usage 
 of trade in these words: "The counsel for the defendant treated this usage 
 among pinnters and booksellers as a custom, such as we find described in our law- 
 books, and have contended that, to be valid, it must have existed for time imme- 
 morial, uninterrupted, definite, reasonable, etc. We apprehend that the law of 
 local customs is not applicable in this case. The usage relied on has nothing local 
 in its nature ; it relates to a certain class of people spread through the country, 
 and to the peculiar business in which they are employed." ' But while a usage 
 of trade or business need not be " ancient," as that word is used in the books, 
 it is nevertheless required that it shall be fully established as a usage of trade 
 or business. And time, it is plain, is one ingredient, at least, necessary to 
 accomplish this. What length of time shall be sufficient can, of course, not be 
 stated in the form of a general rule, but each case must depend upon the various 
 relations of the trade to the public, the exigencies of the business, and the fre- 
 quency of the repetition of the particular usage in the time within which it 
 may be proved to have existed. Thus, three weeks in the city of New York, 
 where a great number of transactions of the same character take place daily, was 
 considered by Slosson, J., a sufficient length of time to establish a usage in the in- 
 
 raorials. And, therefore, where there is any ^"d space would fail me were I to undertake 
 
 proof of the original or commencement of to enter upon the task. I must content 
 
 anything, it cannot be claimed by prescrip- myself with saying that I think these in- 
 
 tionunlessitwerebeforethecommencement quiries would not shed much light upon the 
 
 of the reign of Richard I. Oo. Lit. 113; Id. subject of discussion here, depending, as I 
 
 115 a; 3 Stark, on Ev. 1204; Bull. N. P. 248. think it does, upon a few intelligible legal 
 
 The origin of the usage in this case, though principles. Neither can I stop to examine 
 
 not in the memory oJ living men, is shown the various cases cited from the reports of 
 
 by the dates of the acts establishing in- our sister States and some of the courts of 
 
 spections, beyond the earliest of which, of the United States to establish a doctrine 
 
 coarse, the usage could not have existed. different from that of our own court. It is 
 
 I have not thought it necessary to enter into sufficient for mypurpose that this court has, 
 
 the inijuiry as to the origin of the custom of by the unanimous opinion of all the four 
 
 merchants, or into those respecting the judges sitting, disaffirmed the existence of 
 
 origin of the jurisdiction of the Court of any customary law in Virginia in a case in 
 
 Chancery or of the King's Bench in other which the alleged custom would, have been, 
 
 than criminal cases, or of the Courts of and in fact had been, held good in England, 
 
 Exchequer and Common Pleas ; nor shall I and that, upon general principles, I think 
 
 stop to consider the custom to bar entails by that conclusion sound and correct." 
 
 surrender in the Lords' Court without a ' Gould v. Oliver, 4 Bing. N. C. 184. 
 
 recovery, all of which subjects have been so ''I Doug. 510. 
 
 earnestly discussed by the counsel. Time * Williams v. Gilman, 3 Me. 276. 
 
30 ON THE REQUISITES TO THKIK VALIDITY. 
 
 A Cnstom must be Certain. 
 
 surance business restricting the ordinary signification of the word " storehouse," 
 as used in a fire policy;" while five years In an Alabama county, in the year 1852, 
 was thought by the court to be too short a time to establish a usage in the carry- 
 ing trade contrary to the ordinary rules of law.' In Adams v. OUerback,^ a cer- 
 tain banking practice had been in force at a particular bank but two years, and 
 only four cases had occurred under it. This was held to be insufficient to 
 establish a usage. "To give it the force of law," said Mr. Justice McLean, 
 " it requires an acquiescence and a notoriety from which an inference may be 
 drawn that it is known to the public, and especially to those who do business 
 with the bank." In Buford v. Tucker,*' in a suit on a promissory note for a cer- 
 tain number of dollars, made in January, 1865, evidence was offered and rejected 
 that there was at the place, and in the county generally, where said note was 
 given, a general and notorious custom that where the word " dollars " was em. 
 ployed in a contract, and nothing was said as to the kind of dollars, the agree- 
 ment was to pay in Confederate money. "We know historically," said the 
 Supreme Court of Alabama, in affirming the ruling, " that Confederate currency 
 (treasury-notes) was first issued about the year 1862, and, therefore, the alleged 
 custom wanted nearly all the necessary requisites of a good custom. It cer- 
 tainly wanted antiquity, and it must also have wanted certainty, consent, obliga- 
 tion, and the other elements of a good custom." Where a custom of millers 
 at Indianapolis was set up, that when they received wheat, it was at the risk of 
 the seller until he called forhis pay, the court said: "It is very difficult to see 
 how such a custom could be proved. It could not be proved by showing that It 
 was the custom of millers to make such a stipulation a part of the contract, 
 because that would make the question of liability one, not of custom, but of 
 special contract. Such a custom could only be proved by showing that the 
 Indianapolis millers had long been in the habit of thus receiving wheat, and 
 losing it or having it destroyed, and that the sellers did not claim pay for it in 
 such cases ; in short, that losses of wheat by millers, and exemption from liability 
 to pay for it, had been so frequent and for so long a time as to have become the 
 law of the place." * A habit of a carrier, for a month past, to deposit goods in 
 a certain place does not establish a custom binding on parties not having knowl- 
 edge of it.^ 
 
 Therefore, the rule that a usage must be established means simply that it 
 must have existed a sufficient length of time to have become generally known.' 
 
 § 9. A Common-Iiaw Custom must be certain. — A common-law custom was 
 
 1 Wall J). Bast River Ins. Co., 3 Duer, 264. App. 263; Legh v. Hewitt, 4 East, 154. The 
 
 = Cooper 17. Berry, 21 Ga. 626. And see usage of a, corporation in conflict with its 
 
 Smith 17. Bice, S6 Ala. 417. chartered powers need not be ancient. 
 
 " 15 How. 539. Bulldey v. Derby Fishing Co., 2 Conn. 262, 
 
 ' 44 Ala. 89. poat. Chap. III. " In order to constitute sucli 
 
 s Carlisle t'. Wallace, 12Ind. 252. a custom, or, more properly speaking, such a 
 
 « Alabama, etc., R. Oo.o. Kidd, 35 Ala. 209. usage as is binding upon a tenant, it is not 
 
 ' Smith V. Wright, 1 Oaines, 45; Trott v. necessary that it should have been immemo- 
 
 Wood, 1 Gall. 444; Mears v. Waples, 3 Houst. rially adopted; it is sufficient if there be a 
 
 581 ; Clark w. GifTord, 7 La. 524 ; Hall v. Storrs, general usage applicable to farms of a par- 
 
 7 Wis. 253; Newbold v. Wright, 4 Rawle, ticalar description." Taylor's I,. &T., §640 
 
 195; Wilson v. Bauman, 80 111. 493; Juggom- (citing, inter Ma, Thorpe v. Eyre, 3 Nev. & 
 
 ohun Ghore v. Manickchund, 7 Moo. Ind. M.ai4; Wilkins v. Wood, 17 L. J. (Q. B.) 319). 
 
A CUSTOM MUST BE CEETAIN. 31 
 
 Illustrations. 
 
 required to be certain and uniform, both as to the persons claiming under it 
 and the things claimed.' "This is an element," says Mr. Browne,' "-which 
 must necessarily and by force of reason attach to a custom. Any miscellaneous 
 observances which have no coherence of principle are necessarily inefficacious as 
 forming a rule of conduct. It is only when observances have shaped themselves 
 into a constant uniformity, only when their characteristics of the past can be a 
 clear light for their incidents in the future, that they rise to the level of a cus- 
 tom, which is the stuff of which law is made." Therefore, since before Black- 
 btone's time a custom that land shall descend to the most worthy of the owner's 
 blood was void, on the ground that the custom gives no certain means for the 
 discovery of merit, while a custom that lands shall descend to the next male of 
 the blood, exclusive of females, was good. In 8elby v. Bobinson,' it was held 
 by the Queen's Bench, in 1788, that a custom for poor and indigent householders 
 living In A. to cut and carry away rotten boughs and branches in a chase in A. 
 could not be supported, the descriptions of the persons entitled ))eing too 
 vague. And in another early case it was held that no person had, at common 
 law, a right to glean in the harvest-field ; and that neither have the poor of a 
 parish legally settled (as such) any such right, on the ground that such a right 
 would be inconsistent with the nature of property, and that no right can exist 
 at common law unless both the subject of it and they who claim it are certain.* 
 So, a custom to pay twopence an acre in lieu of tithes is good ; but were it to 
 pay sometimes twopence and sometimes threepence, as the occupier of the land 
 chooses, it is bad on account of its uncertainty.^ "Yet a custom," as Black- 
 stone puts it,* " to pay a year's improved value for a fine on a copyhold estate 
 is good, though the value be uncertain; for the value may at any time be ascer- 
 tained, and the maxim of the law is. Id certum est, quod certum redi potest." 
 So, a custom for the tenants of collieries to thi;ow earth, stones, coals, etc., in 
 heaps upon land near to certain coal-pits was held bad, on the ground that the 
 word near was too uncertain.' In Wilson v. Willes,^ the declaration was tres- 
 pass for breaking and entering the close of the plaintiff, called Hampstead 
 Heath, and digging and carrying away turf covered with grass, etc. Plea : that 
 the locus in quo was parcel of a waste in the manor of Hampstead; that there 
 had been from time immemorial divers customary tenements by copy of court- 
 roll. And it then alleged a custom for tenants of such tenements, " having a 
 garden or gardens, parcels of the same," to dig turf for the making or repairing 
 of grass-plots in such gardens every year, at all times of the year, in such quan- 
 tity as occasion hath required, and justified the taking accordingly. To this plea 
 there was a general demurrer, and judgment was given for the plaintiff. Lord 
 Ellbnborough said that " a custom, however ancient, must not be indefinite 
 and uncertain; " that it was " not defined what sort of improvement the custom 
 extends to; " that " every part of the garden may be converted into grass- 
 
 ' Dane'sAbr., chap. 26, § 5; Milleehamp v. * Steel v. Houghton, ] H. Black. 51. 
 
 Johnson, Willee, 205 ; Bell v. Wai-dell, Willes, ^ Tanistry's Case, Day. 32 ; Blewett v. Tre- 
 
 202 ; Steel v. Houghton, 1 H. Black. 61 ; Rex gonning, 3 Ad. & E. 554. 
 
 V. Ecclesneld, 1 Barn. & Aid. ,S60; Lloyd v. « 1 Bla. Coram. 61. 
 
 Jones, 12 Jur. 657; 17 L. J. (C. P.) 206; 6 C. ' Wilkes v. Broadbent, Willes, 63. But 
 
 P. 81. see Marquis of Salisbury v. Gladstone, 9 H. 
 
 2 Usages & Customs, 21. L. Gas. mi. 
 
 a 2 Term Kep. 75ti. « 7 East, 121. 
 
32 ON THE REQUISITES TO THEIR VALIDITY, 
 
 A Custom must be Certain. 
 
 plots;" that there was "nothing to restrain the defendants from taking the 
 whole of the turbary of the common," and it resolved itself into " the mere 
 will and pleasure of the tenant." Similarly, in Clayton v. Oorby,^ an action of 
 trespass for breaking plaintiff's close and digging and carrying away clay, the 
 defendant justified as the owner of a brick-kiln, and pleaded that all occupiers 
 thereof for thirty years had enjoyed as of right, etc., a right to dig, take, and 
 carry away from the close so much clay as was at any time required by him and 
 them for making bricks at the brick-kiln, in every year, and at all times of the 
 year. The plea was held bad, Denman, C. J., saying: " tt is observable that 
 in all cases of a claim of right in alieno solo, whether immediately or in any 
 degree resembling the present, such claim, in order to be valid, must be made 
 with some limitation or restriction. In the ordinary case of common appurte- 
 nant, the right cannot be claimed for commonable cattle without stint and to any 
 number, but such right is measured by the capability of the tenement in ques- 
 tion to maintain the cattle during the winter; levancy and couchancy must be 
 averred and proved. Again: in the case of common of estovers, or a liberty of 
 taking wood, called in the books house-bote, plough-bo te, and hay-bote, such 
 liberty is not wholly vague and indeterminate, but confined to some certain and 
 definite use. The like of the common of piscary. The nature of these rights is 
 thus compendiously, but, we believe, accurately given by Mr. Justice Black- 
 stone : 2 ' These several species of commons do all originally result from the 
 same necessity as common of pasture, — viz., for the maintenance and carrying 
 on of husbandry, — common of piscary being given for the sustenance of the 
 tenant's family, common of turbary and flre-bote for his fuel, and house-bote, 
 plough-bote, cart-bote, and hedge-bote for repairing his house, his instruments 
 of tillage, and the necessary fences for his ground ; ' that is, for a certain and 
 definite purpose. * * * The nature of the tenement (so-called), a brick- 
 kiln, leads to no conclusion one way or the other as to the extent of the claim 
 and demand upon the soil of the plaintiff. It may have been, at the time of the 
 trespass, of any dimensions and capacity. It may have been during the thirty 
 years of alleged enjoyment continually varying, and consequently the quantity 
 of clay required for the purpose of making bricks thereat may have varied also. 
 There is no limit. No amount of clay (measured by cart-loads or otherwise) 
 required, no number of bricks (estimated by hundreds or thousands) claimed to 
 be made, Is given or attempted. What is it, therefore, but an indefinite claim to 
 take all the clay ' out of and from the said close, in which,' etc. ; in other 
 words, to take from the plaintiff, the owner, the whole close? " ' 
 
 § 10. Likewise a TTsa^e of Trade must be certain and uniform. — The rule 
 that a custom must be certain and uniform is also strictly applied to usages of 
 trade.* Where a usage of the cloth-trade was set up, to the effect that on the 
 
 1 6 Q. B. 415, 361; Earl of Manchester v. Vale, 1 Saund. 
 
 " 2 Bla. Oomm. 35. 28. 
 
 ' See also Peppin v. Shakespear, 6 Term » Pay v. Alliance Ins. Co., 16 Gray, 455; 
 
 tlep.748; Duberley«.Paige,2TermRep.391; Vos v. Robinson, 9 Johns. 192; Touro v. 
 
 Shakespear v. Peppin, 6 Term Rep. 741 ; Val- Cassin. 1 Nott & M. 173; PhiUps v. Wheeler, 
 
 entine v. Penny, Noy, 145; Dean of Ely «. 10 Texas, 536; Oelricks v. Ford, 23 How. 49; 
 
 Warren, 2 Atk. 189 ; Hayward v. Ounnington, Singleton v. Hilliard, 1 Strobh. 203 ; Strong v. 
 
 1 Lev. 281; Hayward v. Ounnington, 1 Sid. Grand Trunk R. Co., 15 Mich. 206; Rogers ti. 
 
A USAGE OP TRADE MUST BE CERTAIN. 33 
 
 Illustrations. 
 
 ■■ale of cloth the buyer had three days within which to send word to the seller 
 that he would Keep the goods, othei-wise the seller could send for them back, 
 some of the witnesses called to support the usage spoke of three days as the 
 time, others a week, and one a month. Bukrough, J., held that the usage was 
 too uncertain to be valid. ' And in Sewell v. Corp," where the custom alleged was 
 one to pay veterinary surgeons for attendance as well as medicines, and the wit- 
 ness called stated that the general rule was to charge for attendance when there 
 was not much medicine required. Best, C. J., said: " Such a usage as this is 
 too uncertain." So, a custom among wliolesale merchants to allow their sales- 
 men pay for time lost by sickness;' a. usage among brokers that the margins 
 put up to cover the advance in the commodity to be purchased must be " rea- 
 sonable," no rule by which a "reasonable" margin can be determined being 
 shown; * a custom among commission merchants, on sale of grain for cash, to 
 wait two, three, or four days for the money .* In a Maryland case, where there 
 was set up a usage among merchants in the city of Baltimore to deliver to 
 purchasers merchandise sold for cash, without demanding the cash, and vrithout 
 the vendor waiving his right to cash payment, and the witness called to establish 
 It said that he delivered the article without "the cash only when he considered 
 the purchaser good, the court said: " This is not a usage, which must be some 
 thing fixed, certain, and universal. A usage which differs upon the action of 
 each particular person is no usage. One man may think the purchaser good, 
 when his next neighbor may think otherwise ; and this is said to be a usage ! " ^ 
 And where it was attempted to prove a usage that cash sales were not underT 
 stood as for cash in hand, but that payment might afterwards be made, the 
 court said: " The evidence did not tend to prove it. KTo two of the witnesses 
 agree as to what it was. Its protean form is recognized at one time as giving 
 three days, and again as giving twenty-five days ; sometimes counting from the 
 day of sale, and sometimes from the date of delivery. Then, it is evanescent. 
 It Is in full force in one month, and gone the next. Certainty is one of the 
 requisites of a good custom." ' In an Indiana case, a custom among commission 
 merchants that flour of a grade not Suitable for the market and sale in the oily 
 of Indianapolis was, in the absence of special instructions, forwarded to the 
 city of New York, was held to lack certainty, and to be therefore Inadmissible. 
 «< It may well be asked," said Eluott, J., "to what grade of flour does this 
 alleged custom apply, to render it certain. The allegations imply that flour of 
 some grade or grades is suitable to the Indianapolis market. If the custom 
 defined that quality, then it might be inferred that all other grades were excluded, 
 and should be shipped to New York. Or, it the custom defined the particular 
 grades that were not suitable to the Indianapolis market, then the commission 
 
 Mechanics' Ins. Go., 1 Story, 606; Child v. States v. McCall, Gilp. 663; Oollings «>. Hope, 
 
 Sun Mutnal Ins. Co., 3 Sandf. 26; Illinois 3 Wash. 0. Ot. 149. 
 
 Masons' Benevolent 8oo. v. Baldwin, 86 111. i Wooa v. Wood, 1 Oar. & P. 59. 
 
 479; Oadwell v. Meek, 17 111. 220; Crawford ' 1 Car. & P. 392; ante, p. 2. 
 
 •. Olavk, 15 111. 561 ; Thorn v. Rice, 15 Me. ' Sweet v. Leach, 6 Bradw. 212. 
 
 S63; leham v. Fox, 7 Ohio St. 317; Linsley v. * Oelricks v. Ford, 23 How. 49. 
 
 Lovely, 26 Vt. 123; Hinton v. Coleman, 45 ' Stewart ». Soudder, 2 Am. L. Beg. 80; 
 
 Wis. 166 ; United States v. Buchanan, Crahbe, Oatlin v. Smith, 24 Vt. 85. 
 
 636; United States v. Buchanan, 8 How. 83; i^ Foley v. Mason, 6 Md. 37. 
 
 United States f. Daval, Gilo. 356: United ' Union E. Oo. ». Yeager, 34 Iiiil. i. 
 
34 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Certainty Required of a Usage. 
 
 merchant, on the receipt of flour of the condemned grades, would at once know 
 his duty. The plaintiff's shipment consisted of two different grades, single X 
 and XXX, and yet both are condemned as unsuitable. The question involved 
 concerns the shipper as much as it does the factor; and it is important for him, 
 in his effort to become a competitor in the Indianapolis market, to know what 
 grade of flour is suitable to the tastes of those depending on that market for 
 supplies, or that may be demanded by the particular use to which it may be 
 applied; or, if certain grades are to be condemned as unsuitable, and, under the- 
 alleged custom, sent to New York, to know what such grades are. If such a cus- 
 tom exists among the commission merchants of that place, and is certain and 
 well defined, they should be able at once, by the inspection of the brand or quality 
 of flour, to determine it promptly. The alleged custom, it seems to us, is void 
 for uncei^ainty; because, by its terms as stated in the pleadings, it is impossible 
 to determine what grade of flour is and what is not subject to its provisions, 
 and condemned to be shipped to New York. It would seem to leave each factor 
 to determine from his own judgment, if not his peculiar tastes, to what grades 
 the custom applies. If each day is to determine its application, making it 
 apply to one grade to-day and another to-morrow ; if at one period it applies- to 
 all grades, and at another to none, it is not only wholly uncertain, but is mis- 
 named a commercial usage." ' 
 
 In Berkshire Woollen Gompany v. Proctor,^ an innkeeper being sued for a sum 
 of money stolen from the bed-room of a guest, the defendant relied upon a 
 custom of the inns in that place for guests to deposit money in the office safe. 
 Four proprietors of hotels were called to establish it. Two of them testified 
 that they had printed regulations posted up in the rooms of their respi-ctive 
 houses requiring their guests to leave their money and other valuable articles at 
 the office, to be deposited for safety in the safe ; the other two testified that they 
 had printed regulations posted up in their houses, but they contained no notice 
 as to depositing valuables. The usage was held inadmissible. " In two of the 
 four houses, therefore, of whose custom evidence was particularly given," said 
 Fletcher, J., "it was the custom to give particular notice to the guests to- 
 deposit their money, and in two of them there was no custom to give such notice. 
 There was, therefore, in the custom of these four houses a very striking want of 
 uniformity in a matter of vital importance. In regard to the custom of the 
 guests in these houses, it appears from the evidence that some of them deposited 
 their money ; and this is all which does distinctly appear. The evidence wholly 
 fails to establish the position that there was any general, uniform custom of the 
 guests even in those four houses to deposit their money in the safes." In a 
 Maryland case, a deed of composition provided that " borrowed money " should 
 be paid in preference to certain other debts, and it was claimed that these words 
 had by usage a peculiar meaning among the merchants of the place. One witness 
 defined the phrase as "money loaned on call, for which no charge is made; "' 
 another said : " If a person ask me to take money on interest for fifteen or 
 twenty days, it would be borrowed money;" a third said: "If money is loaned 
 for twelve months, on interest, it is not a debt of honor, nor if loaned for an 
 indefinite time ;" and a fourth witness testified : " If a party lends me money for 
 
 ' Wallace v. Morgan, 23 Ind. 399. And see ' 7 Cush. 417. 
 
 Oinoinnati, etc., R. Uo, v. Boal, 15 Ind. 345. 
 
A USAGE OF TRADE MUST BE CERTAIN. 35 
 
 Illu=;trations. 
 
 my accommodation, trusting to my honor, for an indefinite time, I consider it a 
 debt of honor." The court held that the custom was inadmissible, as lacking the 
 elements of certainty and uniformity, saying: "The testimony is inconsistent 
 and contradictory. A standard so variable is incapable of application, and 
 cannot control the well-understood meaning of words." ' In one case, a custom,. 
 in making surveys of government land, to enclose more land than the warrant 
 actually called for, was set up. Several witnesses were called to prove it. 
 A. testified that it was customary for the earlier surveyors to make an allowance 
 of five per cent in the length of the line. B. said it was usual for surveyors, in 
 surveying rough, broken, and bushy land, to add four inches to the length of the 
 chain, and some did and some did not add to the length of the line measured 
 with a chain thus elongated. In resurveying some of the old surveys, he had 
 found the lines generally to be longer than called for, some exceeding this length 
 five per cent — some more, and some less. A few of the old surveys would fall 
 short of the distance called for; there was a great variety of measurement in the 
 old surveys, but generally they measured the distance called for. He knew of 
 no general standard or proportion of excess. C. confirmed his statements. 
 "It is certain," said the court, "that almost every locator has appropriated to 
 himself more land than his warrants would entitle him to ; but the question is, 
 whether there has been any certain and uniform rule by which this class of 
 persons have been governed in this respect, and whether that rule is the oue 
 insisted upon by the plaintiff's counsel. * • * The testimony, so far as 
 proving any known and certain custom, proves the reverse." ^ In another case, 
 In order to prove a custom that the captain of a steamboat had authority to bind 
 the owners by giving a premium-note for insurance, four witnesses testified. 
 One said that the custom was for an owner and the captain to insure for all the 
 owners, the captain signing the premium-note. Another said that it was cus- 
 tomary for the captain to execute the note ; but whether under authority of one or 
 all of the owners, he did not say. A third testified that it was customary for the 
 captain to insure for the boat and owners, but added, upon cross-examination, 
 that he knew of no case where the captain was not directed by the owner. The 
 fourth said that it was customary for the captain to insure for the owners, as 
 was done in this case. On this evidence it was held that the custom was not 
 proved, Gordon, J., saying: "Prom this testimony it is impossible to say what 
 the custom or usage is, it indeed any such exists. Has the captain power, upon 
 his own motion, to insure, or does it require the joint action of a part-owner and 
 the captain ? May he insure the boat when there is but a single owner, or is he 
 confined to cases where there are several joint-owners ? These are questions 
 which are legitimately raised from the evidence, and as that evidence does not 
 clearly and definitely answer either of them, the court should not have permitted 
 it to go to the jury." ^ 
 
 A usage of trade to which no limit is assigned to its extent is bad. Where a 
 usage of the brewing and distillery business was set up, and the opposing coun- 
 sel asked, "What are the limits of the custom? Does it extend to all the dis- 
 tilleries in the kingdom, to all the brewers in the kingdom, to all the publicans 
 in the kingdom? Or is it a custom which is applicable to a particular class, 
 
 1 Murray v. Spencei-, 24 Md 520. »>Adam3 v. Pittsburg Ins. Co., 76 Pa. St. 411. 
 
 > Huston V. McArthur, 7 Ohio. 54. 
 
3tj ON THE REQUISITES TO THEIR VALIDITr. 
 
 Customs must be Compulsory and Consistent. 
 
 wltWn how many miles of St. Paul's, or within what district? Would it prevail 
 as between a distiller at Brentford, a brewer at Romford, a publican at Reigate, 
 or is it confined to Hampstead, Brentford, and Hounslow?" the vice-chancellor 
 thought the objection unanswerable.' 
 
 § 11. A OuBtom must be compulsory. — A custom must be compulsory, and 
 not left to each one's option to obey It.'' " Otherwise," says Mr. Bkownb,' " it 
 loses the imperative character of a law. It is true that agreements which were 
 founded in consent were the origin of customs ; it is true that the observances 
 which have become, 'as it were, acted or pictured laws were at first matters of 
 option; but whenever they are established customs they must have ceased to be 
 matters of choice, and must have an obligatory element — a binding force. 
 Were it in the option of every man whether he would conform to a custom or 
 not, were It a matter which might be referred for decision to his good pleasure, 
 it is evident that it would be invalid upon another ground, viz., uncertainty. A 
 custom, to be binding, must be current. It must be known and understood by 
 those whose conduct is to be affected by its existence, whose transactions are 
 to be influenced by its factual terms ; but if its terms were alterable at the will 
 of each man, if it was in the option of each man to be bound to-day and not 
 bound to-morrow by the custom, any one whose conduct might have to conform 
 to such a rule would find it impossible to shape his actions accordingly, and any 
 transactions which might have to be influenced by such a precept would be 
 varying, indefinite, uncertain, and absurd."* Thus, as laid down by Black- 
 stone, " a custom that all the Inhabitants shall be rated towards the mainte» 
 nance of a bridge will be good ; but a custom that every man is to contribute 
 thereto at his own pleasure is idle and absurd, and indeed no custom at all." ' 
 
 § 12.^ A Custom must bo consistent. — Customs must be consistent with 
 each other. One cannot be set up in opposition to another, for. If contradic- 
 tory, they destroy each other." If two customs are contradictory, it is evident 
 that they cannot both have been established by mutual consent. Thus, the 
 allegation of one custom is not to be met by the allegation of another custom 
 inconsistent with the first, but rather by the denial of the existence of the first 
 as a custom. This rule might well fall within that other one which requires 
 that a custom shall be reasonable; for the absurdity and unreasonableness of 
 two mutually inconsistent customs is evident, and if one custom be admitted to 
 exist, the other, which is inconsistent with It, violates the requisite of reason- 
 ableness, and Is therefore invalid.' 
 
 § 13. A Custom must be continued.— A custom must be continued ; there must 
 be no interruption or temporary ceasing of the right.8 " if," says Mr. Brownb, 
 «'a custom ceased and recommenced, Its new beginning would be within the 
 
 1 Daun V. Oity of Lonaon Brewrery Co., » 1 Bla. Oomm. 61. 
 
 L. R. 8 Eq. 156. 6 1 Dane's Abv., chap. 26, § 7; Alclred'« 
 
 • 1 Dane's Abr.. chap. 26, § 6. Case, 9 Eep. 58 b ; Kenohiu». Knight, 1 WUs. 
 
 • Usages & Customs, 24. 258; parkin v. Eadoliffe, 1 Bos. & Pul. 282. 
 
 4 Adams V. Otterbaok. 15 How. 689; Col- 7 Browne on itsages & Customs. 25. 
 
 Ungs J). Hope, 3 Wash. 0. Ct. 149; Donnell e 1 Dane'." Abr chap 21 
 
 V. C9lurabi8n Ins. Oo„ 2 Sumn. 36B; Wil- > Usages & Customs, 16. 
 MnhE r. FMlllps, 1 TVVJ. Jr. «. 
 
 .f.i. 
 
CUSTOMS MUST BE CONTINUED. 
 
 37 
 
 Acts of Accommodation. 
 
 memory of man, and would be due to the will of an individual, which would 
 exclude it from the definition of a custom, and make any usage subject to such 
 a lapse void as a custom. But an interruption which is to prove valid as against 
 a custom must be an actual interruption of the usage, and not simply an inter- 
 ruption of the possession of the right.' One of the common illustrations will 
 serve to make this clear. Thus, it the inhabitants of a parish have a customary 
 right to water their cattle at a certain pool, a mere discontinuance of the prac- 
 tice for ten years would not destroy the custom, although it would add to the 
 difficulty of proving its existence. If, however, the right be discontinued for a 
 single day, that would prove the non-existence of any asserted custom analogous 
 with the right. But it must be remembered that the existence of a custom 
 depends upon proof, and that the discontinuance of a custom, as it tends to in- 
 crease the difficulties of proof, tends also, to that extent, to the abolition of the 
 custom. It cannot be doubted that a custom can be abrogated by a custom, and 
 that many of the usages which at present exist are built upon the ruins of for- 
 gotten customs. That these antecedent customs which differ from oui .jresent 
 practice or common habit must be forgotten, to render our present custom valid, 
 is evident ; otherwise the custom which is now in vogue would not have that 
 element of antiquity and immemoriality to which we have already alluded. But 
 as the acts of some make a law, so can the acts of some abrogate it." " A 
 custom," said Tinbal, C. J., in his judgment in T)/son v. Smith,'' " comes at 
 last to an agreement, which has been evidenced by repeated acts of assent on 
 both sides from the earliest times, before time of memory, and continuing dovra 
 to our own times, that it has become the law of a particular place." So of a 
 usage of trade.' A usage which is proved to exist at a period long before the 
 time of the transaction which it is introduced to affect, and not since, is inadmis- 
 sible.* And for similar reasons, in Fellows v. Mayor of New York,^ the custom 
 of a city department in charging interest on sums advanced to contractors was 
 held inadmissible, it appearing that the custom had been one way down to the 
 year 1858, under one comptroller, and another way from 1858 to 1878, under 
 other comptrollers. Where the knowledge of a witness who was introduced to 
 prove a usage was not later than a year before that time, the usage was held not 
 sufficiently proved.' 
 
 §/14. Acts of Accommodation or Indulgence do not make a Usage. — Thus 
 it is that a mere habit of accommodation or indulgence does not establish a 
 usage.' A creditor, for example, may indulge a debtor in one or two cases 
 without thereby binding himself to do likevrise in the future.* As said by Hoar, 
 J., in Metealf v. Weld,^ " There are many usages of trade which have nothing to 
 do with the contracts of parties, and which cannot be set up to modify or con- 
 trol them. It is very customary for merchants to pay their debts by checks 
 upon a bank ; and this may be very well known to persons who deal with them, 
 
 1 Co. Lit. 114. 6 17 Hun, 249. 
 
 2 9 Ad. & E. 406. 6 Hale v. Gibbs, 43 Iowa, 380. 
 
 8 Johnson v. Stoddard, 100 Mass. 306; Mc- ' Farlowj;. Ellis, 15 Gray, 229; Cincinnati, 
 
 Masters!). PennsylvaniaE. Co.,59Pa. St. .374. etc., K. Co. ». Eoal, 16 Ind. 345. 
 
 1 Michigan Central E. Co. v. Coleman, 38 ^ Brent «; Cook, 12 B. Mon. 268. 
 
 Mich. 440 ; Walker v. Barron, 6 Minn. 608. » Ante, p. 14. 
 
38 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Acts of Accommodation. 
 
 and yet no one is bound to receive a check in discharge of a promise to pay 
 money. It may be a custom in some kinds of business to pay workmen in orders 
 for goods, or in goods kept for sale by their employer, or not to pay wages 
 punctually at the time they are due, and the fears or necessities of the laborer 
 may Induce him to yield to the custom, and accept payment in a manner or at a 
 time convenient to the employer; but it would hardly be contended that such a 
 custom could be regarded in determining the legal effect of a written agree- 
 ment." Thus, the common act of courtesy which induces a man to call on his 
 mechanic to rectify what Is amiss in his job does not establish a custom to 
 exonerate the trade from responsibility for bad work.i In a Maine case it was 
 said that, however common it may be for persons, in receiving payments, to 
 waive their strict legal rights and to make use of a paper currency, such a habit 
 would not bind any one who chose to insist upon his legal right to receive gold 
 and silver .'i In a Maryland case It is said : " Because the plaintiffs had been 
 constant customers of the bank, which had discounted for them many like drafts 
 and immediately sent them on for acceptance, when the law did not require it, 
 was no just reason to compel the bank, at the risk of being held liable for neg- 
 ligence, to pursue a similar course in the future. The concession of such a 
 favor, though repeated in sundry instances, ought not to be construed to operate 
 as imposing upon the bank the imperative duty of its constant repetition, and as 
 conferring upon the plaintiffs the absolute right to demand and insist upon its 
 continuance. However much the plaintiffs might be disappointed in their 
 expectations upon the subject, the legal relations of the parties were not 
 changed thereby."' A usage among mills in Lowell to give a certificate of 
 honorable discharge to an operative who had worked a certain term and per- 
 formed certain conditions, which certificate would obtain him employment in 
 other mills, does not render it obligatory to give such a certificate fn all cases 
 where the conditions have been complied with ; the giving of such a discharge 
 is a matter of discretion in the particular mill.* Where a contract as to land 
 gives no right to cut the timber, evidence that the owner had permitted others, 
 under similar contracts, to cut timber without considering them trespassers, is 
 irrelevant.^ And the mere act of a railroad company in paying for the medical 
 services of an employee injured in its service would hardly establish such a cus- 
 tom for subsequent cases which might arise.^ 
 
 § 15. But cannot be changed to the prejudice of others In some 
 Oases. — But, though the practice of a particular business may at anytime be 
 altered by those engaged In it, yet an arbitrary change cannot be made, to the 
 prejudice of others, without some notice of the change. Perhaps even notice 
 would not be sufficient, if a party was not given sufficient time to adapt his 
 conduct to the new custom. As sustaining this view, the English case of 
 Gumming v. Shand'' seems In point. Bankers had taken up certain bills for a 
 customer upon the security of proceeds to be expected from certain consign- 
 
 1 Somerby v. T.ippan, 1 Wright, 570. 6 Norton v. Heywood, 20 Me. 359. 
 
 2 Lord V. Burbank, IS Me. 178. » Mobile, etc., E. Co. v. Jay, 61 Ala. 247. 
 ' Citizens' Banlc v. Graffliu, 31 Md. 507. ' 8 Hurl. & N. 96. 
 
 ■1 Tliornton v. Suffolli Man. Co., 10 Oush. 
 
ACTS OF ACCOMMODATION. 39 
 
 Customs must be General. 
 
 ments, and at the same time allowed him to continue to draw upon his deposit 
 Account with them. This practice had existed for some time, when, some goods 
 remaining unsold and the market price having gone down, they refused to pay 
 ■one of his drafts. In an action by the customer, it was left to the jury to say 
 whether the course of dealing of the parties had been understood as on this 
 looting, or whether it was a mere act of indulgence on the part of the bank; if 
 the former, they were instructed that the bankers could not suddenly, and with- 
 out notice to him, interfere with this custom. The jury found for the plaintiff. 
 *'l am of the opinion," said Pollock, J., "that the case was properly left to 
 the jury. No doubt, if a person has been accustomed to accept bills for the 
 accommodation of another, he may refuse to do so any longer ; for there is no 
 tenancy of a man's credit which requires any time to put an end to it. But that 
 Is not the case where a course of dealing has prevailed and value has been given 
 for the accommodation. It makes no difference whether the one party is a factor 
 or a banker, if the circumstances are such as to justify the other in drawing, 
 though he has not a cash credit, he is entitled to do so until he has notice that 
 the accommodation is discontinued. The question, then, is whether there was 
 between the plaintiff and the bank a course of business which could not be put 
 an end to without a reasonable notice. It seems to me that there is no objection 
 to the mode in which the case was left to the jury, and that they have arrived at 
 a, proper conclusion." MLartin, Watson, and Channell, BB., concurred. Of 
 course there is a difference, and this case recognizes it, between such an estab- 
 lished practice as to entitle the customer to demand its continuance until he has 
 received a proper notice of its cessation, and a mere voluntary courtesy, which a 
 man may extend on one day to one person, and refuse the next to another or the 
 same person. In the latter case there is no implied promise to repeat or con- 
 tinue the favor; the party receiving it understands this well, and there is nothing 
 on which a different idea could be founded. This would seem to be the correct 
 test in such cases; and though each case would depend entirely upon its partic- 
 ular facts and circumstances, its status would not be difficult to determine.' 
 
 § 16. A Common-Law Custom must be General. — In Viner^s Abridgment ' 
 it is said: "Information in the Exchequer against a merchant for lading wine 
 in a strong ship ; the defendant pleaded license of the king, made to J. S., to do 
 so, which J. S. had granted his authority thereof to the defendant, and that 
 there is a custom among merchants throughout England that one may assign 
 such license to, and that the assignee shall enjoy it, etc., which was demurred 
 in law; and it was agreed for law that a man cannot prescribe custom through- 
 out England, for if it be throughout England, it is a common law, and not a custom,; 
 contra, If the custom had been pleaded to be in such a city or county. * * * 
 Note the diversity." InFiteh v. Bawling,^ while it was held that a custom for ajl 
 the inhabitants of a parish to play all kinds of lawful games and pastimes in a 
 •close, at all seasonable times of the year, was good : yet a similar custom for all 
 persons whatever happening to be in the said pari h vas held bad, Boller, J., 
 saying: "How that which may be claimed by all the inhabitants of England can 
 be the subject of a custom, I cannot conceive. Customs must in their nature be 
 
 1 See Harper v. Calhoun, 7 How. (Miss.) 2 nt. •< Custom." 
 
 303 ; Van Amee «. Bank of Troy, 8 Barb. 312. = 2 H. Black. 393. 
 
40 ON THE REQUISITES TO THEIB VALIDITY. 
 
 Generality — How far Requisite. 
 
 confined to individuals of a particular description, and what is common to all 
 mankind can never be claimed as a custom." Later, In Tyson v. Smith,^ which, 
 was an action of trespass, to which a custom for all victuallers to erect booths- 
 on the land in question during certain fair-days was set up. It was objected that 
 it was general, as amounting to the common law. But this objection was over- 
 ruled. " Admitting, for the purpose of argument," said Tindal, C. J., "that a^ 
 custom which would comprehend within it all the liege subjects of the crown 
 would be bad, on the ground of Its amounting to the common law, we think th» 
 custom before us is not of that description ; for in the present custom there are 
 these restrictions, which necessarily limit its generality: The parties who claim, 
 the benefit of it must be victuallers ; they must be victuallers coming to keep 
 the fair, and they must come at the precise period of the year at which the fair 
 Is fixed. Now, under the description of victuallers mentioned in the custom, we 
 cannot consider that very large body of persons to be comprehended who. In 
 ancient times, appear to have been classed under that designation by the statute* 
 referred to in the argument ; but we think the plea must be taken to speak In 
 the language pt the time at which it Is pleaded, and, as the only term used Is 
 that of 'victualler,' it must be understood those only are comprehended who- 
 are now so termed — that is, persons authorized by law to keep houses of enter- 
 tainment for the public. This removes the case at once from the application of 
 Fitch V. Bawling,'^ where the custom comprehended all the liege subjects of the 
 crown being in the parish at any time." 
 
 § 17. How far Generality is required of a particular Custom. — As a gen- 
 eral usage is a part of the common law, as appears from these cases, and as we 
 have also seen in a former section, it seems somewhat of a contradiction of 
 terms to say that a particular custom or a local usage of trade must be general 
 in order to be valid, yet it is so laid down in a number of cases.' In all cases 
 in which this is stated as a requisite to the validity of a usage, the question at 
 issue has been whether the party to be affected by It has been proved to have 
 been acquainted with it. Knowledge of a usage is, as we shall see, necessary in 
 every case in order to bind a person by its terms. Sometimes this notice must 
 be expressly proved, and sometimes, from its generality and notoriety, the law 
 raises the presumption that it was known. It is, therefore, only as affecting^ 
 the question of notice that the generality of the usage becomes material; for a 
 practice may exist between two only, and yet bind them in all subsequent deal- 
 ings unless abrogated by both.' And as express notice is difficult to prove, 
 because in the majority of cases nothing has been said by the parties in their 
 
 ■ 1 Nev. & P. 784 ; 1 Per. & Dav. 307. Eq. 491 ; Oelrlcks v. Ford, 23 How. 49 ; Rioh- 
 
 = Ante, p. 39. ardson v. Goddiu-d, 23 How. 44; CofEraan ». 
 
 3 Thjm.s(in«. Albert, 1.5 Md. 26S; Holford Campbell, 87 111. 9S; Bissell i>. Ryan, 23 111. 
 
 V. Adams, 2 Duer, 471; Citizens' Bank v. 568; Duvall v. Bank, 1 Gill & J.31; 9 Gill & J. 
 
 GralUin, 31 Md. 807; Chastain v. Bowman,! 31; Rogers v. Mechanics' Ins. Co., 1 Story, 
 
 Hill,270; Pol8om».Merohants',eto.,Ins. Co., 606; Fulton Ins. Co. v. Milner, 23 Ala. 420; 
 
 38 Me. 414; The Commonwealtli v. Mayloy, Sweeting v. Pearoe, 7 0. B. (N. s.) 449; D» 
 
 67 Pa. St. 291; Cope v. Dodd, 13 Pa. St. 38; Hertel v. Supple, 13 Upper Canada Ch. 648; 
 
 Berkshire Woollen Co. ■„. Proctor, 7 Cush. 14 Upper Canada Ch. 421 ; Fisher v. Western 
 
 420; Taunton Copper Co. v. Merchants' Ins. Assur. Oo., 1 1 Upper Canada Q. B. 255. 
 
 Co., 22 Pick. 108; Gurnoy v. Behrend, 3 El. < Camming v. Shand, .■) Hurl. & N. 95; 
 
 & Bl. 634; Coventry u. Gladstone, L. li. 4 Hotohklss o. Artisans' Bank, 42 Barb. 517. 
 
GENERALITY HOW FAR REQUISITE, 41 
 
 Illustrations. 
 
 negotiations about the usage, it is obvious that in the greatest number of 
 instances it becomes absolutely necessary to prove such a usage as the law 
 will presume the party intended to be bound by ; and, consequently, in all these 
 cases the generality of the custom becomes vital, and the rule that a usage must 
 be general is applied by the courts with rigor. 
 
 It becomes, therefore, of importance to determine what the courts understand 
 by this rule. And in the first place it is settled that a usage may be " general," 
 as this term is used here, notwithstanding that it is confined to a particular city, 
 town, or village.' It may be generally known in that city, town, or village, and 
 be understood by all persons dealing there, and yet may not exist in any place 
 beyond. But the usage of a single house,^ or of one person only,' or of a single 
 mill,* or of one railroad company,* is insuflBcient. It has been held that evi- 
 dence of a custom in the cities of New Orleans, Cincinnati, and Louisville 
 would not be alone sufficient to prove a general custom of merchants upon the 
 Mississippi River and its tributaries.' And It is held in Massachusetts that it 
 does not show a usage of trade to show that many persons, or a majority of 
 persons, engaged In the business practice a particular, mode. The practice 
 must be universal; it must be the mode.' Isolated instances of a certain prac- 
 tice in a particular bank, — as, for instance, the payment of a loss in an unusual 
 case,* — or proof of a few instances of dealings in one or two other banks, 
 do not establish a general usage.' A particular banking usage must apply to 
 a place rather than to a particular bank. It must be the rule of all the banks in 
 the place or it cannot be a valid usage. If every bank, it has been said, could 
 establish its own usage, the confusion and uncertainty which 'would ensue 
 would greatly exceed any local convenience resulting therefrom.'" In Bickford v- 
 JJidgre," Lord ELLENBOROuaH said: " I cannot hear of any arbitrary distinction 
 between one part of the city and another. It is not competent to bankers to 
 lay down one rule for the eastward of St. Paul's, and another for the westward. 
 They might as well fix upon St. Peter's at Home." 
 
 To establish a usage on the part of municipal corporations, it must be a 
 general usage among like towns and cities, and not a usage in a single town or 
 city." 
 
 In a case where the question was whether there had been a deviation by 
 a vessel which would discharge the underwriter, and a witness stated that he 
 
 1 Gleason v. Walah, 13 Me. 397 ; Thompson ' Chesapeake Bank v. Brown, 29 Md. 483. 
 Hamilton, 12 Pick. 426; Perkins v. Jordan, '» Adams u. Otterback, 15 How. 539. 
 
 85 Me. 23; Clark v. Baker, 11 Meto. 188. » 2 Camp. 537. 
 
 2 Weber v. Kingsland, 8 Bosw. 415. '^ Butler n. City of Charlestown, 7 Gray, 
 s Burr v. Sickles, 17 Ark. 428. 12. " In considering this subject of usage," 
 
 4 Schlessinger v. Dickinson, 5 Allen, 47; says Shaw, C. J., in Spaulding i?.. Lowell, 23 
 Stevens V. Reeves, ante, p. 7. Pick. 71, " it is proper to add that it is not a 
 
 5 Detroit, etc., R. Co. v. Van Steinburg, 17 casual or occasional exercise of a power by 
 Mich. 99. But a court may refuse to charge one or a few towns which will constitute 
 that the usage of one boat does not consti- such a usage, but it must be a usage rea- 
 tnte a custom of the trade, where no foun- sonable in itself, general among all towns of 
 dation for such a charge appears from the like situation as, to settlement and popula- 
 evidence. Langford t'. Cummings, 4 Ala. 46. tion, and of long continuance." "A casual 
 
 « Walsh V. Frank, 19 Ark. 270. or occasional exercise of a power by one or 
 
 ' Porter «. Hill, 114 Mass. 106. a few towns will not constitute a usage." 
 
 8 Allen V. Merchants' Bank, 22 Wend. 216. Hood p. Lynn, 1 Allen, 103. 
 
42 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Generality. 
 
 had known two vessels on a similar voyage make a similar call, Mr. Justice 
 Washington said: "The evidence given * * * is very far from proving 
 a usage of trade. Twenty instances may have occurred of vessels not being 
 otherwise provided with persons acquainted with the trafHo in males on the 
 Main, calling there to obtain such a person; and as many instances may have 
 occurred of vessels proceeding with a supercargo brought from the port of the 
 vessel's departure, relying upon finding such a character at Coro. But there is 
 no pi-oof of a usage. It should appear that this course is uniformly pursued, 
 and that it should be known as well to the underwriters as to the insured. The 
 former must take notice of the usage of trade, but then it must be uniform and 
 fixed." And a verdict was returned for the defendants.' And in a subsequent 
 case Mr. Justice Stobt said: "As to the question of usage: in order to support 
 that defence it was not sufficient that a few instances could be produced in 
 which masters in the trade had transshipped goods, and no objection had been 
 made. The course of the trade must be uniform and general to entitle it to be 
 considered as a legal defence. It should be so well settled that persons engaged 
 in the trade must be considered as contracting with reference to the usage ; and 
 as the proof of such usage lay on the defendant, the jury ought not to change 
 the general principles of the law as to the rights of the parties, unless the usage 
 ■were fully proved to be uniform and independent of the consent of particular 
 shippers." ' In an old English case, where, in a case of insurance effected from 
 Liverpool to Jamaica, the ship put into the Isle of Man, and..it appeared that 
 ships bound on that voyage sometimes, but not usually, put in there, it was held 
 that the proof did not amount to such a well known and settled usage of the 
 trade between Liverpool and the West Indies as to prevent it from being a 
 deviation.' In Child v. Sun Mutual Insurance Company,^ where a policy of 
 marine insurance was on a " whaling voyage," the policy having been executed 
 in New York on a Rhode Island whaliijg-ship, the plainti|fs claimed that the 
 words above quoted included the taking of sea-elephants on the beaches of 
 islands and coasts, as well as the catching of whales wherever found. The 
 defendants offered to prove that previous to the date of the policy it had been 
 the general and uniform usage of assurers at the port of New Bedford, when it 
 was intended to employ in taking sea-elephants a vessel insured on a whaling 
 voyage, to insert a permission to that effect in the policy, for which an additional 
 premium was paid. The trial judge excluded the testimony, and his ruling was 
 affirmed on'appeal. " On considering the point," said Sandford, J., " we think 
 the proposed evidence was inadmissible, for two reasons at least, viz. i 1. It was 
 a local usage, not extending to New York, where the policy in suit was made, 
 nor to Warren, Rhode Island, where the assured resided, and to which port the 
 vessel belonged. 2. It was the usage of the assurers only ; and although from the 
 payment of premium we might infer the assent of the assured, the limited terms 
 of the offer would leave it in doubt whether the assent was a ratiflcation or 
 admission of the usage, or was caused by greater caution and a desire to leave no 
 room for controversy. If it were the well-established usage at New Bedford 
 that a whaling voyage did not include sea-elephanting, the underwriters and 
 
 1 Martin i>. Delaware Ins. Co., 2 Wash. 0. » Salisbury v. Townsou, 1 Ai-noiild on 
 
 Ot. 254. Ins. 56. 
 
 » Trott V. Wood, 1 Gall. 444. * s Sandf. 26. 
 
GENERALITy HOW FAR REQUISITE. 43 
 
 Illustrations. 
 
 the masters of whalers in that port could have proved It far more satisfactorily 
 than it could possibly be done by the production, without explanation, of the 
 policies executed by and between them. It would then have appeared whether 
 the insurers there refused to pay a loss in cases where the vessel insured had 
 taken sea-elephants without any permissive clause in the policy." In Couch v. 
 Watson Coal Company,^ ttie plaintiff was employed by the defendant in its mine, 
 and was injured, while ascending the shaft in a cage, from a drill which fell 
 from a descending cage. He sought a recovery on the ground that the cages 
 were defective in not being supplied with bonnets, or coverings. As tending to 
 ■show that the cages were defectively constructed, and that the defendant was 
 therefore guilty of negligence in using them, the plaintiff called a witness who 
 testified to having worked for many years In coal-mines in Wales and Penn- 
 ey Ivania where steam machinery was used. He was thereupon asked, "What 
 was the custom, or how was the machinery constructed — how were the cages 
 constructed as to bonnets?" To which he answered, "I only worked in one 
 shaft." He was then asked, "How was that as to bonnets?" and replied, 
 "There was what we called bonnets, or covers, there in that one shaft." In 
 the Supreme Court this evidence was held to have been improperly admitted. 
 " Before a custom can affect the rights of parties," said the court, " it must be 
 fio geaeral that a knowledge thereof by them may be presumed. For instance, 
 before the defendant could be deemed guilty of negligence in the construction 
 or use of the cages, the custom under which it was sought to make it 'liable 
 should be so general that the defendant could be presumed to have knowledge 
 of its existence. The fact that bonnets were used in one mine in Pennsylvania 
 or Wales had no tendency to prove the existence of such a castom tliare, mach 
 less here. Besides, mines, of necessity, must be of various depths, and what 
 would be proper machinery for one might not be for another. What is cus- 
 tomary in Pennsylvania may not be so here. If it had been shown that operators 
 of mines in this State, similarly situated, and using substantially the same kind 
 of machinery, generally constructed cages with bonnets, it could be reasonably 
 presumed that defendant had knowledge of such custom, and the failure to do 
 what was usual and generally done by others in a similar business and under 
 similar circumstances would have a tendency to show that these cages were 
 improperly and negligently constructed." In an action for the use of a canal- 
 boat, it was attempted to be proved that a custom existed in and about the port 
 of New York, when the owner of freight takes charge of the boat and pays all 
 the expenses during the winter, to deliver the boat to the owner in the spring, 
 free of charge, and to charge nothing for the use of the boat. This was sought 
 to be established by the testimony of two witnesses who had been in the habit 
 of so leaving their boats without charge for the same. One of them testified 
 that the boat is unloaded and delivered in the spring without charge for its use, 
 the one being set off as an equivalent for the other. It was held that the proof 
 was not sufficient to establish a general custom.^ Proof that a certain practice 
 of factors " was very common in the trade, but a few factors in Mobile would 
 not do so," is insufficient to establish a usage.' And evidence that it was " very 
 unusual " to do a certain thing would not prove a usage not to do so.* 
 
 > 46 Iowa, 17. < Eennell v. Kimball, 6 Allen, 356. And 
 
 > Sipperly v. Stewart, 50 Barb. 62. see Cooke v. Fiske, 12 Gray, 491. 
 
 > Austin V. Crawford, 7 Ala. 335. 
 
44 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Generality. 
 
 On the other hand, it is clear that a usage of trade may have a greater or less 
 territorial extent, or a more general or restricted, according to the circum- 
 stances which gave rise to it;' and so, In Sumner v. Tyson,'' evidence that a 
 certain custom prevailed in three different establishments v?as considered suffi- 
 cient to establish it as general. Again : in an action to recover for a number of 
 logs which hay become lodged In the defendant's boom on the Pemigewassett 
 River, and had been converted and sawed by him, the plaintiff offered testimony 
 that it was the custom in that locality, where logs were thus mingled, for the 
 party owning the boom to separate and pass by the boom all logs not his own ; 
 but it appeared that there was no other boom on that river. The trial court, 
 however, admitted the evidence, and the ruling was affirmed on appeal. " The 
 fact that there was only one boom on the river at that time, and that the 
 defendant was the owner of that one," said Ames, J., "furnishes no objection 
 to the competency of the evidence. There may have been an established and 
 ancient usage in that locality and in that department of business, of the kind 
 which the plaintiff offered to prove, and the defendant may have habitually com- 
 plied with It. If so, it was competent for the plaintiff to show it." ' 
 
 In an Iowa case,* where a usage among the merchants in a certain city to 
 regard certain paper as negotiable was set up, and it was objected that, as by 
 the State Constitution all laws were required to be uniform, and therefore, by 
 statute, a note could not be negotiable in one city and not so in another, neither 
 could a custom be recognized which would- result in the same thing, the court 
 said: "It must be remembered, however, that we have no statute prohibiting 
 such custom. A custom in a particular locality, when not in violation of law, 
 becomes a law to parties contracting with a knowledge of it. The same general 
 rule as to what makes custom, and its application in the construction of con- 
 tracts, obtains uniformly over the State. It might as well be claimed that all 
 parties must make the same kind of contracts as that they may not contract in 
 reference to different customs." 
 
 In Lewis v. Marshall,^ A., a ship-broker, engaged with a ship-owner to have a 
 full cargo for the ship, the rates of freight for which would average 40s per ton, 
 and at least jiine cabin-passengers, passage-money to average £75. The contract 
 was fulfilled as to the cabin passengers, but the average rate of freight for goods 
 put on board by A. amounted to only 32s per ton. He shipped on board, how- 
 ever, several pteerage-passengers for the voyage, the passage-money paid by 
 whom, after deducting the expense of their diet, etc., when added to the freight 
 of the cargo, properly so called, made the average earnings of the whole ship per 
 •ton amount to more than 40s. It was held that, as the contract was an un- 
 usual one, evidence was not admissible to show that the terms " cargo " and 
 "freight," used with reference to the voyage on which the ship was engaged, 
 would, by the general usage and course of the trade, be considered to comprise 
 steerage-passengers and the net profit arising from their passage-money. 
 
 § 18. A Usage must be known. — A usage must be known to the party to be 
 affected by it, before a court will permit its recognition.' In the case of general 
 
 1 Dixon V. Dunham, 14 lU. 324. * Eindskoff v. Barrett, 14 Iowa, 101. 
 
 » 20 N. H. 384. B 7 Man. & (i. 729. 
 
 8 Saunders v. Olark, 106 Mass. 331. • Story on Bail., § B43; Hutch, on Car., 
 
A USAGE MUST BE KNOWN. 
 
 45 
 
 Illustrations. 
 
 commercial usages, — all men being taken to know the law, — every member of 
 the community is presumed to know them, and no one will be heard to contradict 
 this presumption.' But In the case of particular usages it is different; knowl- 
 edge of them is not legally imposed upon the dweller in the particular place, or 
 the dealer in the particular market where they obtain, '' and is to be shown by 
 express proof, or by evidence of their generalty and antiquity. These three 
 elements of a valid usage — antiquity (understood not in its common-law mean- 
 ing, but in the sense of being established), generality, and notoriety — are 
 Intimately connected, because the first two are so frequently necessary to make 
 good the third. Thus, In Womersley v. Dally ' it was held that a custom, not of 
 the country, but prevalent only between the owner and tenants of a particular 
 landed estate, was not binding on a tenant who became such without express 
 notice of its existence. And the general usages of the insurance trade are pre- 
 sumed to be known to dealers,* while the particular ones are not.* So of the 
 usages of carriers and others.* 
 
 § 19. Usages not known to Parties' not binding. — Therefore, the usage of 
 auctioneers to charge certain fees for their services is not binding on a pur- 
 chaser; ' the usage of factors as to the disposition of the funds of their prin- 
 
 §40; Caldwell v. Dawson, 4 Mete. (Ky.) 121; 
 Marsh v. Jelf, 3 Fost. &rin. 234; Lansdowne 
 V. Somerville, 3 Fost. & Fin. 236 ; Pierce v. 
 Whitney, 29 Me. 188 ; Martin v. Maynard, 16 
 N. H. 165; Mills v. Ushe, 16 Texas, 300; 
 Marlatt v. Clary, 20 Ark. 251 ; Boyd v. Graham, 
 5 Mo. App. 403; Martin v. Hall, 26 Mo. 386; 
 Walsh V. Mississippi Transp. Co., 52 Mo. 434; 
 The Albatross v. Wayne, 16 Ohio, 513 ; Sutton 
 V. Great Western E. Co., 11 Jur. (u. s.) 879; 
 Buckle V. Knoop, L. E. 2 Exch. 125 ; Moore 
 «. Voughton, 1 Stark. N. P., 487; Wheeler ». 
 Newbould, 5 Duer, 29; Bradley v. Wheeler, 
 44N. T. 500; Higgins v. Moore, 34 N. Y. 425; 
 Dawson ». Kittle, 4 Hill 107; Dodge ji. Favor, 
 15 Gray, 82; Fisher ». Sargent, 10 Onsh. 250; 
 Searson v. Heyward, 1 Spears, 249 ; Whitesell 
 D. Crane, 8 Watts & 8. 369; McDowell v. 
 Ingersoll, 5 Serg. & E. 101; Patterson v. 
 Fi-anklin Ins. Co., 22 Pittsb. L. J. 201 ; Pitre 
 V. Offutt, 21 La. An. 679 ; Lewis v. The Suc- 
 cess, 18 La. An. 1; Leach v. Perkins, 17 
 Me. 462; Sngart v. Mays, 54 Ga. 654; Scott v, 
 Saffold, 87 Ga. 884; National Bank v. Bnrk- 
 hardt, 100 U. S. 686; Bliven v. New England 
 Screw Co., 23 How. 420; Power v. Kane, 5 
 Wis. 265; Scott v. Whitney, 41 Wis. 504; 
 Boardman v. Gaillard, 1 Hun, 217; Butter- 
 worth V. Volkening, 4 N. T. S. C: (T. & 0.) 650; 
 Dugard v. Edwards, 50 Barb. 289; Torrance 
 V. Hayes, 2 Upper Canada 0. P. 338. 
 
 1 Eindskofl v. Barrett, 14 Iowa, 101 ; Beatty 
 V. Gregory, 17 Iowa, 109. 
 
 2 When the term " usages of trade " is 
 made use ol, it a<lmits of an application 
 
 either to the general usages of trade which 
 compose the law of merchants, of universal 
 authority among commercial men in civilized 
 societies, and forming one of the constituent 
 parts of the laws of the State, as the general 
 law of the land, or to "usages of local 
 origin," as prevailing in a particular branch 
 of trade. The former are considered in 
 the nature of those positive laws of which 
 every member of the community is pre- 
 sumed to be conversant, and which are 
 resorted to as known and established tests 
 of contracts in all cases arising under 
 them. The latter depend upon the usage 
 of the persons engaged in the traffic to which 
 they apply, the knowledge of which is not 
 legally imposed on the community, but de- 
 rives its binding force from the supposed 
 knowledge of the persons engaged in that 
 particular species of traffic at the place or 
 in the trade in which it obtains. The latter 
 may be proved by witnesses. Sent, Ch., In 
 Sleght V. Hartshorne, 2 Johns. 632; Hlnton 
 V. Locke, 6 Hill, 434; Back v. Grimsbaw, 1 
 Edw. Ch. 140. 
 
 ' Ante, p. 6. 
 
 * Toledo, etc., Ins. Co. v. Speares, 16 Ind. 
 52 ; Grant v. Lexington Fire Ins. Co., S Ind. 
 23. 
 
 6 Williams v. Niagara Fire Ins. Co., 60 
 Iowa, 561; Howard v. Great Western Ins. 
 Co., 109 Mass. 384. And aeepost, §§ 25, 26. 
 
 ' Barrett v. Williamson, i Mc-Ijea."!, 689. 
 And see post, Ohap. III. 
 
 ' Miller v. Burke, 68 N. T. 6M. 
 
46 ON THE KEQUI8ITE8 TO THEIR VALIDITY. 
 
 ICnowledge of their Existence. 
 
 clpals will not affect the latter; ^ the usage of a merchant as to the commission, 
 allowed to agents will not bind an agent; ^ the usage of cabinet-makers not to- 
 employ workmen except by the day, cannot affect a purchaser ; ^ the private 
 custom of brokers as to the deposit of checks will not change the legal obliga- 
 tion of a party indorsing a check on a bank to pay the same when legally 
 presented ; * the private custom of the lessor of a mine will not bind the lessee ; ' 
 the usage of livery-stable keepers in a particular city to have a lien for their 
 charges upon horses delivered to them to keep, cannot affect a customer,* where 
 in all these cases, respectively, the usages were unknown to the parties to be 
 charged. In Plerpont v. Fowle,'' A. employed B. to compile a school-book, called 
 the "American First Class-Book and National Reader," giving him certain sug- 
 gestions as to its character and form, and paying him' $600 in cash. B., in 
 return, conveyed to A. the copyright, and the book was published by A. with 
 B.'s name on the title-page as author. It was held, in the United States Circuit. 
 Court for the District of Massachusetts, that only the copyright for the first, 
 term had been conveyed ; that the author, being alive at the end of the four- 
 teen years, had a sole interest in the additional term ; and that a usage among 
 booksellers to consider the second term as passing with the first did not affect 
 B., who was not conversant with it, not being a bookseller. Where it was 
 attempted to show that, by the usage among the publishers and conductors of 
 newspapers and printing establishments, a sale of the good-will and subscription- 
 list takes from the seller the right to establish a competing journal and printing- 
 office, it was held that the evidence offered failed to show a usage " so well 
 settled, so uniformly acted upon, and of so long a continuance as to raise a fair 
 presumption that it was known to both contracting parties, and that they con- 
 tracted in reference to and m conformity with it." « In Berkshire Woollen Mills 
 Company v. Proctor,^ the plaintiff's agent went to Boston for the purpose of 
 attending to a lawsuit, taking with him about f 1,000 of their money to defray 
 expenses. He put up at the Marlboro Hotel, which was kept by the defendant, 
 on the 15th of October, 1849, and deposited the money in his trunk in his room,. 
 
 ' Farmers', etc., Bank v. Sprague, 52 N. T. so explicit as to warrant a finding, in the 
 
 605. absence of any express agreement, that 
 
 2 Flynn ®. Murphy, 2 B. D. Smith, 378. In he assented to such usage, and rendered his 
 
 this case the plaintiff sued for commissions services in view of the compensation which 
 
 In obtaining, as the defendant's agent, or- such usage would afford him." 
 
 ders for engraving, die-sinlcing, etc. On » In this case the question was whether 
 
 the trial, the question was put to a witness furniture was sold by a contract as to its 
 
 by the defendant's counsel, "W^hat is the price; and proof that, under the regulations 
 
 usual and uniform rate of commissions of cabinet-makers, workmen could not be 
 
 allowed by the defendant to his agents?" employed to manufacture such furniture 
 
 This question was held, on appeal, to have except by the day, was held inadmissible 
 
 been properly disallowed. " The inquiry," against a purchaser having no notice of such 
 
 said Woodruff, J., " into the usual or uni- regulations. Butterworth v. Volkenlng, 1 
 
 form practice of the defendant in regard to N. Y. S. 0. (T. & 0.) 650. 
 
 paying commissions, standing by itself, was, * Currie v. Smith, 4 N. Y. Leg. Obs. 343. 
 
 I think, clearly inadmissible. No such pri- » Bcatty v. Gregory, 17 Iowa, 109. 
 
 vale practice could affect the plaintiff 's title « Saint v. Smith, 1 Ooldw. 51. 
 
 to recover what his services were worth, ' a Woodb. & M. 23. 
 
 unless it was shown that the plaintiff ren- ' Smith v. Gibbs, 44 N. H. 335. 
 
 dered his services with notice of the detond- » 7 Cush. 117. 
 ant's usage in his business, of a character 
 
KNOWLEDGE OF THEIB EXISTENCE. 47 
 
 Usages of the Stock Exchange. 
 
 taking from it, from day to day, small sums as he required them. On the 2d of 
 November he counted his money, and found that he had exactly #500, which he 
 rolled up in a newspaper and placed at the bottom of Ms trunk, locking it. The 
 day after, he found that the lock had been picked and the money stolen. The 
 plaintiff having brought an action for the amount of money stolen, the defend- 
 . ant, at the trial, in order to charge the agent with negligence in not taking 
 the proper precautions to secure the money, introduced evidence of the custom 
 of guests at their hotel to deposit large sums of money and other valuable 
 articles with the clerk, and in a safe provided by the proprietor for that purpose. 
 The agent swore that he did not know of the custom. The defendant contended 
 that he was nevertheless bound by^the custom, and would be presumed in law 
 to know it. But the court Instructed the jury that if the plaintiff's agent had 
 knowledge of the custom of defendant's hotel, the plaintiff would be bound 
 by it; that U he had no knowledge of the custom the plaintiff would not b& 
 affected by it, unless he was wilfully ignorant of it. A judgment for the plaintiff 
 was affirmed In the Supreme Court. " Proof of knowledge as a matter of fact," 
 said Fletcher, J., " is required in order to give effect to any and all particular 
 usages, not of so general a nature as to furnish a presumption of knowledge. 
 There certainly can be no legal presumption that every traveller who alights at 
 an inn has knowledge of the particular usages of that particular inn, of which 
 there is no notice in any way given to him." 
 
 § 20. Usages ol the Stoct Bxoliaiige. — It is nevertheless true, that those 
 who send goods to a market where a certain custom prevails are presumed to 
 know the custom and to act upon it.' In Sutton v. Tatham,'' it was laid down 
 that a person employing a broker on the Stock Exchange Impliedly gives him 
 authority to act in accordance with the rules there established, though the prin- 
 cipal himself be ignorant of them. "A person who employs a broker must be 
 supposed to give him authority to act as other brokers do. It does not matter 
 whether or not he himself is acquainted with the rules by which brokers are 
 governed." This language was subsequently approved in a later case, where it 
 was said: "A person who deals in a particular market must be taken to deal 
 according to the custom of that market, and he who directs another to make a 
 contract at a particular place must be taken as intending that the contract may 
 be made according to the usage of that place." * In Graves v. Legg,*' the defend- 
 ants (London merchants) employed a broker in Liverpool to purchase some 
 wool. The broker negotiated a sale by the plaintiff to the defendants of certain 
 bales deliverable at Odessa, " the names of the vessels to be declared as soon as 
 the wools were shipped." In this transaction the broker acted for both plain- 
 tiff and defendants. By the custom of Liverpool, where a contract contained 
 a stipulation that notice of an event should be given by the vendor to the vendee^ 
 it was usual for the vendor to give the notice to the broker, who communicated 
 it to the vendee. It was held, both in the Court of Exchequer and in that of 
 the Exchequer Chamber, that the defendants were bound by such usage, and, 
 
 I Ddfovest V. Fulton Fire Ins. Co., 1 Hall, 2 10 Ad. & E. 37. 
 
 84; Bailey ». Bensley, 87 111. 556; Lonergan s Baylifte ji. Butterworth, 1 Exoh. 425. 
 
 P.Stewart, 55 III. 44; Lyon v. Culbertson, * UExch. 642; 2Hurl. &N. 310. 
 S Cent. L. J. 401. 
 
48 ON XUJi; REQUItilTKS TO THEIR VALIDITr. 
 
 Usages of the Stock Exchange. 
 
 therefore, that a notice by the plaintiff to the broker of the names of the 
 vessels on which the wools were shipped was a performance of that stipulation, 
 although the broker omitted to communicate them to the defendants. But this 
 rule seems irreconcilable with the general principle that it is only to be pre- 
 sumed that the parties contracted according to the terms of an existing Oustom, 
 and that that presumption is capable of rebuttal; for here we see that a usage 
 may make a man liable to certain incidents of a contract, although he can satis- 
 factorily prove that he was in ignorance of the custom. It also seems to be In 
 almost direct opposition to the rules laid down In Qdbay v. Lloyd,^ Bartlett v. 
 Pentland,'' and other cases.* In the first of these it was found, in special verdict, 
 that a certain usage with respect to poliSies prevailed amongst the under- 
 writers subscribing policies at Lloyd's Coffee-House in London, and merchants 
 and others effecting policies there, and that the policy in question was effected 
 at Lloyd's Coffee-House; but it was not found that the plaintiff was in the 
 habit of effecting policies at that place, and it was held that this usage was not 
 sufficient to bind the plaintiff. And in the latter, a custom was proved to be in 
 force at Lloyd's Coffee-House to consider a set-off as payment between nndei> 
 writer and broker, and it was held that such custom was not binding on one who 
 was not shown to be cognizant of it, or to have assented to it. In Sweeting v. 
 Pearce, the court thought the custom lacking the element of generality, it being 
 the custom of a single house, and this house certainly not a " market." Yet 
 these cases were decided before the case of Bayliffe v. Butterworth — in which 
 the general principle that the usage of a particular market binds him who buys 
 or sells in it, whether he is aware of it or not, was laid down — came before the 
 Court of Exchequer; and Parke, B., while he did not question the authority of 
 these cases, distinguished them from the one before the court, which was one in 
 which a person had been authorized to make a contract for a principal, and he 
 remarked that it appeared to him that " a person who authorizes another to 
 make a contract for him, authorizes him to make the contract in the usual way," 
 and that " the question here was as to the authority which the plaintiff received." * 
 This Mr. Browne <• considers a perspicuous distinction. The scope of authority 
 is to be ascertained by the necessities which are incident to the act which an 
 agent has to do. His action in the matter will be estimated by the possibilities 
 of the trade in connection with which he transacts, and these possibilities are 
 modified by the usages of the trade. It is in the power of the principal to define 
 the agent's authority with a strictness which will prevent the operation of the 
 customs of the place or trade. If he fails to do so, he must not complain if his 
 authority is interpreted by the ordinary usages of the trade, and he finds him- 
 self bound by these even though he is ignorant of their existence. The chaiv 
 acter of the usage and its effect upon the relation of parties must be considered 
 before it is admitted to affect a contract entered into by persons who were igno- 
 rant of it. Some usages are so evidently technical that it would be wrong to sup- 
 pose that persons contracting without knowing them could reasonably anticipate 
 their existence, or the existence of any in their factual connection. Many, on 
 
 » S Barn, ft Cross. 793. Sweeting v. Pearce, 7 O. B. (N. s.) 449 ; Adam* 
 
 « 10 Baf n. i, Crs'O. 760. ». Peters, 2 Oar. & Kir. 723. 
 
 ' Si',i)J(, V. Irvine, 1 Bam. & Adoi. 60« ; * l Exoli. 425. 
 
 » Browne on Usages Jb Oustuuif;, Ti.. 
 
USAGES or THE &TOCK EXCHANGE. 4& 
 
 When Binding, and on whom. 
 
 the other hand, are so palpably matters of general convenience, and belonging 
 to a trade in such rapid growth, that it must be presumed to be making its own 
 laws in the establishment of customs, that it is right to presume that the indi- 
 vidual contracting, although ignorant of the particular custom, must have been 
 aware of the existence of usages, may have surmised their nature, and even if he 
 <iid not, was at least willing to enter into a contract the precise terms of which 
 were unknown to him because the incidents were to be attached by a usage of 
 which he was ignorant. Just as one man trusts another to work for him, with 
 general authority as an agent, trustuig to the honor and honesty of the indi- 
 vidual, so may one trust a usage to regulate one's rights ; for a usage is the 
 outcome of the honor, honesty, fair dealing, and convenience of a class of men. 
 The admissibility of proof of a usage as against one who was ignorant of it is a 
 question which might well be left to be decided in each individual case. " There 
 could," says Mr. Browne, " be little reason for dissatisfaction in the admission 
 of a, rule of the Liverpool Stock Exchange in evidence between parties not 
 members of it, when the question was, what is a reasonable time for the com- 
 pletion of a sale of shares made at Liverpool through the agency of brokers." 
 The rule that a party dealing by an agent in the Stock Exchange is presumed to 
 have knowledge of its customs, whether he really knew of them or not, is thus 
 explained by Folgek, J., in a New York case: "There are cases of principal 
 and agent, where one has been set by another to do acts in a particular business, 
 to be done at a particular locality, — as on Stock Exchange, ^- where the power to 
 deal is a privilege obtained by payment of a fee, and is restricted to a body which 
 has, for its regulation and government, come under certain prescribed rules or 
 established usages; and as the agent could not do the will of his principal, nor 
 could the principal himself, save in conformity with those rules or usages it is 
 held that the principal must be bound thereby, whether cognii^nt of them or 
 not, and that ignorance will not excuse him." ' 
 
 That persons having only occasional dealings with stock-brokers cannot be 
 bound by aU the usages of the market is shown by the case of Harris v. T\im- 
 bridge, recently decided in the courts of New York. The defendant was a 
 broker and dealer in stocks in New York, doing business under the name of 
 Tumbridge & Co. During the year 1877, circulars were widely distributed by the 
 defendant, describing methods of speculating in stocks, with alluring accounts 
 of the profits likely to be realized. One of these circulars reached a Miss Har- 
 ris, living at a distance from the city. It recommended the purchase of " strad- 
 dle contracts " as the safest form of speculating. In Wall Street parlance, a 
 " straddle " is a contract by which an operator engages with a speculative cus- 
 tomer that he will, during a specified time, either sell or buy, as the customer 
 may elect, shares of a specified stock, at a price named. For this privilege of 
 electing to buy or sell, the customer pays a round sum down. The theory is, 
 that if the stock mentioned in the contract falls, the customer can make a corre- 
 sponding profit by virtue of the right to sell at the old and higher price ; if it rises, 
 he will likewise make a profit by virtue of his right to buy at that price. If it 
 neither rises nor falls, the operator pockets the bonus which, at the beginning, 
 was paid for the privilege. The circulars of Tumbridge & Co. contained an 
 
 I Stewart o. Cauty, 8 Mee. & W. 160; Stew- 2 Walls v. Bailey, 49 N. Y. ^-t. 
 
 »rt u. Aberdeln, i Mee. & W. 211. 
 
•50 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Customs of Servants of Corporations. 
 
 explicit guaranty " that, in a stock we select, the fluctuations will aggregate at 
 least eight per cent on a sixty-day contract, costing $400 ; and in case this does 
 not occur, we will guarantee no loss except commission." Miss Harris was 
 willing to make a venture of the kind described, and she sent to Tumbridge & 
 Co., in a letter pointedly referring to and relying on the guaranty, $425 to be 
 invested for her. They answered, apprising her that they had purchased for 
 her account a straddle contract on Lake Shore and Michigan Southern Railroad 
 stock. Miss Harris thereupon awaited the expected rise or fall, either of which 
 was to bring her a profit against her $425 expended. The stock did rise some- 
 what more than ten per cent; and according to the plaintiff's understanding of 
 the engagement, she should have received a remittance of about $700 net profit. 
 Instead of this, the broker sent her word that just after buying the straddle he 
 had sold one hundred shares short against it, and that on account of this the 
 speculation had resulted disastrously, leaving her indebted to him $9. The 
 defendant claimed that he had acted in accordance with a custom among brokers 
 to use a straddle in such way, but did not pretend that the plaintiff had any 
 personal knowledge of such custom, or had ever given any consent. The latter 
 did not dispute the custom, nor that the step taken might have been judicious and 
 fair, if done with the customer's knowledge, but took the simple position that 
 the defendant could not, upon any pretext of usage of brokers unknown to her, 
 depart from the contract indicated by the letters. On this ground she sued for 
 damages for the defendant's viotation of his duty as broker, and recovered judg- 
 ment. On appeal to the Court of Appeals, the judgment was affirmed in her 
 favor. So, in a very recent case in Nevada (Maryey. Strouse), a broker sued 
 his customer for a balance of account which included a large charge for " tele- 
 grams." The latter said he had expected to pay the cost of any telegrams need- 
 ful in executing his order, but the charge made was exorbitant. The broker 
 answered that it was "the custom of brokers" to embrace in one message all 
 the directions needed to be given in behalf of all the customers whose business 
 was active at the moment, and to charge each customer seventy-five cents, —the 
 rate for ten words, — which is what his message must have cost if sent sepa- 
 rately, though perhaps two or three times as much as its share of a long mes- 
 sage combining many directions. The court held that a broker cannot sustain 
 charges for nominal disbursements, not actually made, by pretext of a custom, 
 unless he can prove the custom to have existed so long and become so notorious 
 that his eiiiployer must be supposed to have known about it wlicn he gave his 
 order.' 
 
 § 21. Customs ol Servants ol Corporations. — A usage of the servants of a 
 corporation, not shown to have come to the knowledge of the governing officers 
 of the corporation, does not bind it." Yet the necessary notice need not he 
 express, but may be implied from the notoriety of the particular custom. The 
 
 ' Neither of these cases has been yet Stock Market. Harris v. Tumbridge is re- 
 
 reported. I am indebted lor their facts and ported in the coart below in 8 Abb. N. C 291. 
 
 decisions to Mr. Benjamin Vaughan Abbott " Johnson v. Concord R. Co., 46 N. H. 213; 
 
 Mnd an article from his pen in the Bankers' Dietrich v. Pennsylvania R. Co., 71 Pa. St 
 
 MagiKine for April, on the Usages of the 432. 
 
USAGES MUST BE KNOWN. 51 
 
 Corporations — Customs of Servants. 
 
 Commonwealth v. Ohio and Pennsylvania Bailroad Company,^ decided in tlie 
 Supreme Court of Pennsylvania in 1856, illustrates this rule. The action was 
 brought against the defendants to recover a penalty imposed by a statute for 
 paying out bank-notes of a less denomination than five dollars. The notes on 
 which the action was based were passed by the conductors and ticket-agents of 
 the company, in their cars and ticket-offices, in the course of their employment 
 in giving change for notes of a larger denomination received by them in the 
 payment of fare on the road. On the trial, the plaintiff offered to prove that it 
 was the open and notorious custom of the company's conductors and ageijts to 
 issue and pay out the prohibited notes ; but this evidence was rejected, and the 
 defendants had a verdict. But the Supreme Court held that the evidence should 
 have been received, and remanded the case for a new trial. " The question," 
 said Black, J., "is whether the railroad company is liable for the acts of the 
 ticket-agents and conductors. I concur fully in the opinion that the defendants 
 are not liable under the statute unless the notes were paid out by the corpo- 
 ration. The corjJoration did not pay out the notes unless the officers immedi- 
 ately chosen by the stockholders to manage the affairs of the company either 
 passed them away with their own hands, or else authorized their subordinate 
 agents to do so. A servant of the corporation who does an act forbidden by 
 law is responsible for it in his own person, and the corporation is not presumed 
 to have given him any authority for such an act. It is very clear from this that 
 where a conductor pays out an illegal note in change to a passenger, the penalty 
 cannot be recovered from the company without proof that he had the authority 
 of the president, directors, or treasurer, or some of them. But is it necessary 
 that this proof should come in any particular form? Will nothing do but a 
 solemn resolution of the directors, in full meeting assembled? May it not be 
 inferred from circumstances? Surely it may. In the present case, the offer was 
 to prove not only that a large number of small notes was passed upon two 
 persons in the course of a ^ort time, but that it was the open and notorious 
 custom of (as we understand it) all the ticket-agents and conductors employed 
 by the defendants to issue notes of a similar character. Now, what is the natural 
 presumption from this? May a jury infer that the superior officers of the com- 
 pany knew 6f the custom and approved of it? Or must the court, as a matter 
 of law, determine, without submitting it to a jury, that all the conductors and 
 agents were habitually violating the orders of their masters as well as an act of 
 the Legislature? It is for the jury to say what is the natural presumption which 
 arises out of such facts, and there is no rule of policy which requires us to 
 make any legal or fictitious prfesumption on the subject. I will not say what 
 verdict ought to be given on such evidence, but I am very clear that no man who 
 is not a juror in the case has a right to decide that the president and directors 
 were ignorant, and therefore innocent, of a custom which was open, public, and 
 notorious. If a corporation cannot be held responsible for the acts of agents 
 and servants without proof of express authority beforehand, or distinct ratifi- 
 cation afterwards, then the law upon which these defendants are sued, as well 
 as a great many other laws, must remain a dead letter. The managers of a 
 railroad company mHy cause any statute to be violated by their subordinates 
 without giving orders which are capable of direct proof. The treasurer takes 
 
 ' 1 Grant Cas. 329. 
 
52 ON THE REQUISITES TO THEIR VALIDITT. 
 
 Interest. 
 
 from the ticket-agent all the gold and silver he has collected, and leaves him 
 small bills in place of it ; the agent would understand the exact meaning of such 
 a hint. The president passes along the road and sees all his conductors paying 
 out the forbidden paper, without censure or disapproval ; the habit is as sure 
 to be continued as if he had told them to go on. If these bills had been passed 
 in a few instances, by one or two of the company's servants, it would not be 
 enough. But it seems to have been a general habit for a long time, until it 
 became a notorious thing. The managers ought to be presumed to know at 
 least as much about the conduct of their agents as was known to anybody else. 
 If they knew of this, and yet suffered it to go on, the agents could not but know 
 that they had the approbation of their superiors ; and if they had, the corpo- 
 ration is responsible." 
 
 § 22. Customs ot Merchants to charge Interest. — Speaking of a custom of 
 merchants to charge interest on unliquidated accounts after a certain credit, it 
 was said by Makct, J., in a New York case, decided in 1830 : " The uniform 
 custom of a merchant or manufacturer is presumed to be known to those who 
 are in the habit of dealing with him, and in their, dealings are supposed to act 
 with reference to that custom.'" This is scarcely a correct statement of the 
 rule, and the facts in the case did not call for this opinion, as the proof showed 
 notice to the defendant of the alleged custom.' In Wood v. Hickok,^ decided by 
 the same court a year earlier, where there was no evidence that the defendant 
 knew of the custom of the plaintiff to charge interest, and no charge of interest 
 had ever been made in any of the accounts rendered the defendant, except in 
 the last, on which the suit was brought, it was held that the custom could 
 not bind him. Similarly, in a case in the same year and in the same court, 
 where interest on charges for storage and wharfage were claimed by virtue of a 
 usage, the court refused to allow it, no proof being given that the defendant 
 knew of the usage.* Yet a similar usage prevailed three years later, on the 
 ground that in that case " it was the uniform custom of all those engaged in the 
 same business to charge interest. It was the custom of the plaintiff to charge 
 it; he had charged it in former accounts against the defendant, and it had been 
 paid without objection, before the contract was made on which this suit was 
 brought." ^ This last extract states the proper test, though it is, of course, not 
 absolutely required that the party sought to be charged should have paid pre- 
 vious demands of interest in order to raise the presumption that he has notice 
 of the custom in a later caSe. But it is requisite that some evidence, either of 
 its extensive notoriety or of the party's dealings having brought him into contact 
 with the custom, should be added to the bare proof that such is the custom of 
 the particular dealer, or of the trade in general. This statement will be found 
 to be supported by the best considered of the authorities on the point." 
 
 > McAllister v. Eeab, 4 Wend. 483. Graves, 8 Oaines, 216; Fellows v. Mayor of 
 
 2 See s. c. on appeal, Reab v. MoAllister, New York, 17 Hun, 249; Fisher v. Sargent, 10 
 
 8 Wend. 109. Oiish. 250; Rayburn v. Day, 27 111. 46; Ayers 
 
 8 2 Wend. 601. v. Metcall, 39 lU. 307 ; Barclay v. Kennedy, 3 
 
 * Trotter v. Grant, 2 Wend. 413. Wash. C. Ot. 350 ; X.oving v. Gurney, 6 Pick. 
 
 i> Meech s. Smitli, 7 Wend. 316. 15; Turner «. Dawson, 50 111. 85; Goodnow 
 
 » See, in addition to the cases cited supra, v. Parsons, 36 Vt. 47; Langdon v. Town of 
 
 Esterly i;. Oole, 8 N. Y. 602; Liotard v. Oastleton, 30 Vt. 285; Birchard «. Knapp,31 
 
CUSTOMS Ol' BANKS. 53 
 
 Knowledge — When Essential. 
 
 § 23. Customs ol Banks. — In a few cases It is said that in order to affect a 
 person with a usage of a particular bank it is necessary to show that he was 
 conversant with it.' But these decisions are not law. In Mills v. Bank of the 
 United States,'' it was expressly ruled by the Supreme Court, following Renner 
 V. Bank of Columbia,^ that where a note is made for the purpose of being 
 negotiated at a bank whose custom is to demand payment and give notice on the 
 fourth day of grace, that custom binds the parties. And it was said : " In the 
 present case, the court is called upon to take a step further ; and, upon the prin- 
 ciples and reasoning of the former case, it has come to the conclusion that when 
 a note is made payable or negotiable at a bank whose invariable usage it is to 
 demand payment and give notice on the fourth day of grace, the parties are 
 bound by that usage, whether they have a personal knowledge of it or not. 
 In the case of such a note, the parties are presumed, by implication, to agree to 
 be governed by the usage of the bank at which they have chosen to make the 
 security itself negotiable." Many other cases lay down the rule that a usage of a 
 bank is binding on persons dealing with it, whether known to them or not.* All 
 that is required is, that it shall have been so long established that its customers 
 may well be presumed to have known of it. Less than this, however, will not 
 do ; and so, where a certain practice had been adopted by a bank but two years, 
 and in that time only four instances under it had occurred, it was held, in the 
 Supreme Court of the United States, that the requisite notoriety was wanting.^ 
 
 § 24. Customs of particular Trades and Professions. — If there is a general 
 usage applicable to a particular profession or business, parties employing an 
 individual in that profession are supposed to deal with him according to that 
 usage.* "All trades have their usages, and when a contract is made with a 
 man about the business of his craft, it is framed on the basis of Its usage, which 
 becomes a part of it, except when Its place is occupied by particular stipu- 
 lations." ' 
 
 It is held in some cases that where services are rendered, and a uniform usage 
 is shown in regard to such services, it will be pi-esumed that they are rendered 
 in accordance with the usage. In the following instances, the usage being 
 proved, it was held not material that the proof did not show, in addition, that 
 the party to be affected by it had express notice of it: In an action by S., a 
 veterinary surgeon, against C, for attendance and medicine furnished to C.'s 
 horse, a custom to pay veterinary surgeons for attendance as well as medicines ; * 
 in an action by a dry-goods salesman against his employer for a wrongful dis- 
 
 Vt. 679 ; Wood «. Smith, 23 Vt. 706 ; De Hertel 6 Adams v. Otterback, 15 How. 539. 
 
 ». Supple, 13 Upper Canada Ch. 648; U Upper » Sewell v. Corp, 1 Car. & P. 392; Given 
 
 Canada Ch. 431. ». Charron, 15 Md. 602; Lyon v. George, 44 
 
 1 Pierce v. Butler, 14 Mass. 303. Md. 295; Vaughn v. Gardner, 7 B. Mon. 326; 
 
 2 11 Wheat. 431. Walls v. Bailey, 49 N. Y. 464 ; Tord v. TerreU, 
 'Pes*, Chap. III. 9Gray,401; Lowe ». Lehman, 15 Ohio St. 179; 
 4 Dorchester, etc., Bant v. New England Barton v. McKelway, 22 N. J. L. 165; Carter 
 
 Bank, 1 Cush. 177; .Bank of Washington v. v. Philadelphia Coal Co., 77 Pa. St. 286. 
 Triplett, 1 Pet. 25; Yeaton i/. Bank of Alex- ' Pittsburg v. O'NeiU, 1 Pa. St. 343. 
 
 andria, 5 Cranch, 49; Bank of Columbia v. ' Sewell v. Corp, 1 Car. & P. 392. 
 
 Fitzhugh, 1 Har. & G. 239; Smith v. Whit- 
 ing, 12 Mass. 6. 
 
54 O.V THE REQUISITES TO THEIR VALIDITJf. 
 
 Customs of Particular Trades. 
 
 missal, a custom among dry-goods jobbers that when a clerk or salesman begins 
 a season without a special contract, he cannot be dismissed until tlie end of it; ' 
 in an action against a glass-ware manufacturer by an agent, for commissions, a 
 usage among manufacturers of glass-ware to allow their local agents commis- 
 sions both upon goods ordered directly through such agents and upon goods 
 ordered by buyers living in the territory of the agent directly through the manu- 
 facturer.^ 
 
 The customs and regulations of employers requiring notice of intention to 
 leave the master's service must, in order to affect the servant, be shown to have 
 been known by the latter at the time of entering the service. On this ground 
 the usage set up in the leading case of Stevens v. Beeves ' was rejected. The 
 usage was that no person employed in a woollen-factory should leave without 
 giving a fortnight's notice of his intention, and the defendant, a weaver, did 
 not know of the usage. In a Scotch case,* it was ruled that if a servant has 
 been hired from Whitsunday to Martinmas, and is dismissed at Martinmas with- 
 out warning, it is not relevant to her claim for wages during the subsequent 
 term that by local usage no warning is given, unless the usage be notorious. 
 Notice of the employer's regulations Is not sufficiently brought home to the 
 employee by merely placing in his hands a printed copy of such regulations, 
 unless it is shown that the employee can read. The law will not presume that 
 he can read, but imposes the burden of proving that fact on the party to be 
 benefited.* If the servant does not know of the usage, and is not informed of 
 it when he begins work, the fact that he is afterwards informed of it, and con- 
 tinues to work without objection, does not conclusively show such assent, 
 though it may be evidence thereof.^ 
 
 In many cases no distinction is made between a local and a general custom, or 
 a custom established by time and a custom of but short duration, in the par- 
 ticular trade. Doubtless the cases did not call for this. But the rule is best 
 stated with the qualification that it must have been so well established and noto- 
 rious as to properly raise a presumption that it must have been, or ought to have 
 been, known to the parties sought to be bound by it.' Where both pai-ties are 
 engaged in the same particular business, and the usage relates to the techni- 
 calities of their calling, it will ill become one of them to profess ignorance of 
 it, and such a plea would find little favob with the courts. So, too, where the 
 one to be charged with the usage, though not of that calling, yet has dealings 
 with it, the presumption would still be violent that he knew of the usage, pro- 
 vided only it had been in existence for a sufl[lcient length of time for him to have 
 gained knowledge of it. If a party closes his eyes and shuts his ears to what is 
 universally known in his community by others, he wQl not be allowed to shelter 
 himself under a plea of ignorance.^ 
 
 1 Given u. Oharron, 16 Md. 502. " Collins v. Xew England Iron Co., 115 
 
 2 Lyon V. George, 44 Md. 295. Mass. 23. 
 
 ■I 9 Pick. 198, ante, p. 7. ' Flynn v. Murphy, 2 E. D. Smith, 378. 
 
 < Morrison v. AUavdyce, 2 Scotch Sess. " iMvrev. Lehman, 15 Ohio St. 179; Walls 
 
 Cas. 387 ; Mavhan v. Elliott, Hume, 393. v. Bailey, 49 N. Y. 464 ; Queen v. Inhabitants, 
 
 '• Bradley v. Salmon Falls Man. Co., 30 N. 5 Q. B. SOS; Wilson v. Bauman, 80 111. 493. 
 II. 487. And see Harmon v. Salmou Falls 
 Man. Co., 36 Me. 447. 
 
CUSTOMS MUST BE KNOWN. 55 
 
 -* 
 
 Insurer and Insured. 
 
 § 25. Particular Customs not known to Insured inadmissible. — A custom 
 of a particular insurer which is unknown to the insured is not admissible to 
 affect his rigMs.' In an action against the Dorchester Fire Company, the evi- 
 dence of its agent that it was its custom to charge extra premiums on unoccupied 
 dwelling-houses;^ in an action against the Mtna. Life Company, evidence of a 
 usage on its part to require, as proof of death, a certificate from the deceased's 
 attending physician;'' in an action against the Globe Fire Company, evidence of a 
 usage at New York, in case of the occurrence of any circumstance by the act of the 
 insured after affecting the insurance, whereby the risk is increased, for the insured 
 to give notice thereof to the insurer, who is then to have the option of continuing 
 the policy or of annulling it ; * in an action against the Washington Fire Company, 
 evidence of a usage in the office of the company that the term " carpenters," in 
 a policy referred to the employment and work of carpenters in erecting or 
 adding to buUdings insured; ^ in an action against the Protection Fire Company, 
 evidence of a local usage among Insurers in the county where the property 
 destroyed was situated, to reject an application for insurance on a building 
 which had previously been fired by an incendiary, or to charge a higher premium 
 thereon ; " in an action against the Illinois Fire Company, evidence of a usage in 
 their oflBce to require notice of additional insurance to be given by the insured;' 
 in an action against the Germania Life Company, a custom of the company not 
 to deliver or send policies to agents for delivery except upon the condition that 
 the person whose life was insured was in good health ; ' in an action against the 
 New England Fire Company, the testimony of the president as to the practice 
 of the company in requiring applications for consent to additional insurance to 
 be in writing; ^ in an action against the Hlberuia Fire Company, evidence that 
 the words " standing detached," in a policy, meant, " among insurance men 
 generally," that the subject of insurance should be at least twenty-five feet 
 from external exposure ; '" in an action against the American Marine Company, a 
 usage of the company to require a survey of the goods damaged by the port- 
 wardens, as a preliminary proof of the loss ; " in an action against the Niagara 
 
 1 Carter v. Boehm, 3 Burr. 1905. written contract." But there- was nothing in 
 
 2 I-uce B.Dorchester Ins. Co., 105 Mass. 399. the contract in question providing that such 
 » TaylorB.^tnaLifeIns.Co.,1.3Gray,434. notice should not be given. Had the usage 
 ♦ Stebbins v. Globe Ins. Co., 2 Hall, 633. been a general one, and known and under- 
 5 Washington Fire Ins. Co. v. Davison, 30 stood by the insured as a part of his con- 
 
 *'^"^- 81- tract, though not incorporated therein, it 
 
 « Hartford Protection Ins. Co. „. Harmer, would have been admissible in accordance 
 
 a Ohio St. 452. -Hrith the rule that the usages of trade are 
 
 ' Illinois Mutual Ins. Co. ■„. O'Neile, 13 part of the contract, whether expressed in it 
 
 111. 89. In this case the Supreme Court of or not, provided they are not excluded or are 
 
 Illinois excluded evidence of the usage not illegal. The usage In question was purely 
 
 offered, on the ground that it would modify a local one, and was not shown to have been 
 
 or contradict the contract between the par- known to the plaintiff. It was, therefore, 
 
 ties, Caton, J., saying: "The usage of the rightly rejected, but not for the reasons 
 
 company in regard to additional insurance given by the court. 
 
 upon personal property * * * was prop- » Schwartz ». Germania Life Ins. Co., 18 
 
 erly excluded. No usage of the company, Minn. 448. 
 
 nor even the express agreement of the « Goodall „. New England Fire Ins. Co., 
 
 parties, whether made previous to or at the 25 N. H. 169. 
 
 time of the execution of the policy, can be >o Hill v. Hibernia Ins. Co., 10 Hun, 26. 
 
 admitted to explain, modify, or control the " Rankin v. American Ins. Co., 1 Hall, 619. 
 
56 ON THE REQUISITES TO THEIR VALIDITY. 
 
 , . J ^ 
 
 • Knowledge — When Requisite. . 
 
 Fire Company,' a usage of the company as to the mode of adjusting losses — 
 all these have been held inadmissible in evidence for the purpose of affecting 
 the rights of the insured. 
 
 § 26. And so of particular Customs not known to Insurer. — For like 
 reasons, where a fire-policy on a factory was construed to engage that a watch- 
 man should be kept in the building through the hours of every night in the 
 week, a usage of the factory for the watchman to leave at twelve o'clock on 
 Saturday night, and not to return until twelve o'clock on Sunday night, was held 
 not to affect the breach.^ So, where a marine policy issued at Eockland, Maine, 
 contained a warranty that the vessel should not enter the river and Gulf of St. 
 Lawrence between September 1st and May 1st, and she was lost in the Strait of 
 Northumberland, placed by geographers as within the gulf, in December, a 
 usage at Boston not to regard the strait as within the gulf was not admitted. 
 "A usage," said the court, "may be local or general. But if local, the con- 
 tracting parties are not bound by the usages of other places, unless they are 
 referred to or made part of the contract. It is immaterial what may be the 
 usage or the construction given to particular words at Boston; they will not 
 affect a contract at Rockland, unless a similar usage or the same construction 
 to the same words is shown to exist there if the contract is there made. The 
 usage must be definite and brought home to the knowledge of the parties to be 
 affected, or so general and well established that there must be ground to pre- 
 sume the parties had knowledge of it, or that they were bound to be informed 
 of it." 3 
 
 § 27. Knowledge oi Custom — Wlien not presumed. — As we have seen, if 
 A. makes a contract with B. in any particular trade or business, both A. and B. 
 are presumed to contract with reference to any customs of that trade which 
 may affect their rights inter se. A custom cannot affect parties between whom 
 there is no privity of contract. In Daun v. City of London Brewery Company,^ 
 a tavern-keeper deposited the lease of his house with the defendants, brewers, 
 ■with a memorandum stating that the deposit was to secure payment of the sum 
 of £200, as well as any other sums in which the depositor might become indebted 
 to the brewers on any account not exceeding £500. The brewers subsequently 
 made a further advance of £100. Four days thereafter the tavern-keeper gave 
 the plaintiffs, who were distillers, a memorandum declaring that the documents 
 deposited with the brewers should, subject to the brewers' charge, be a security 
 to the distillers for the sum of £120 then due them, and all other sums that 
 might thereafter become due them. Notice of this second equitable mortgage 
 was on the same day given by the distillers to the brewers, and afterwards the 
 tavern-keeper became indebted to the brewers in a further sum of money for 
 beer supplied to him. On the trial of an action to determine the priorities, the 
 brewers claimed to be entitled, by virtue of a custom in the trade between 
 brewers and tavern-keepers, to add the last sum due them to the amount secured 
 
 ■ Williams v. Niagara Ins. Co., 60 Iowa, s c„bh v. Lime Ro.-k, etc., Ins. Co., 58 Me. 
 
 661. 326. 
 
 = Glendale Man. Co. (J. Protection Ins. Co., < L. R. 8 Eq. LW. And sec Menzies ». 
 
 21 Conn. 19. Lightfoot, L. R. 11 Eq. 459. 
 
CUSTOMS MUST BE KNOWN. 57 
 
 Illustrations. 
 
 by tlie deposit of the lease, in priority to the distillers' charge. But Jambs, 
 V. C, rejected the custom, saying: " It is difficult to apply such a custom to 
 persons who are entering into no contract between themselves — who have only 
 this connection: that they are suppliers of a common customer. We know how 
 persons on the Stock Exchange, dealing with one another, are affected by the lex 
 loci. There is supposed to be introduced into the contract the usage and prac- 
 tice of the Stock Exchange, which is known to both of the contracting parties, 
 and that is taken as part of the contract. One can understand how, when a 
 landlord lets his land to a tenant, the custom of the country as to crops and 
 allowances to outgoing tenants may be introduced as part of the contract 
 between landlord and tenant ; but it is very difficult to see how anything of the 
 kind can be applied to persons who have no privity of contract, who do not 
 contract at all with each other, but who are persons who have only the misfor- 
 tune, or the good fortune, to be creditors of the same person. It seems to me 
 very much as if a custom were alleged in these terms : that if a citizen of Lon- 
 don and a burgess of Southwark were both creditors of a trader, the citizen of 
 London might say, ' There is a custom by which my debt must be paid first, in 
 priority to yours.' " 
 
 The custom of others to do certain acts cannot support a similar act done by 
 a party who was himself ignorant of any such custom, and whose actions, there- 
 fore, could not have influenced his conduct' in the least. Thus, in Kinne v. Pord,^ 
 an action was brought to recover the value of a check for $10,000 in gold, which 
 the plaintiffs alleged was delivered by their clerk to the defendants' clerk. The 
 defendants denied its receipt. The plaintiffs' clerk testified that he delivered 
 the check in question, that he took no receipt for it, and did not get the defend- 
 ants' check for currency for the amount of the check he had delivered. Upon 
 the question of the delivery or non-delivery of the gold check, the plaintiffs 
 were permitted to prove that other persons who were late in their delivery of 
 checks payable in gold were sometimes accustomed to leave the checks, and 
 take no checks for currency in payment until afterwards. The clerk, it appeared, 
 had no knowledge of such a custom. The admission of this evidence was held 
 to be error. "The witness," said the Supreme Court, "knew of no such 
 custom, had delivered no gold check before this one, as he could remember, and 
 did not pretend that this custom was the reason of his taking no check for the 
 one he delivered. The question was, Did he deliver this check in the manner 
 and at the time he testified he did? It was not legitimate or proper evidence 
 . upon this issue that persons about whose deliverances of stock no question is 
 made were sometimes accustomed to deliver checks and received neither evi- 
 dence nor payment, when such custom was neither known to the witness nor 
 stated by him as a reason why he omitted to take either receipt or payment." 
 
 A usage of a bank cannot bind a party who has no occasion to believe that he 
 will be brought within its operation, or does not intend to be. Therefore, where 
 an indorsed check was drawn on a bank at A., was cashed at a bank at S., and 
 forwarded thence to the bank at A. for collection, any customs between the bank 
 at S. and the bank at A. were considered irrelevant, since there was " no pretence 
 that this check was drawn or indorsed with a view to its being negotiated or 
 
 1 52 Barb. 194. 
 
58 ON THE REQUISITES TO THEIR VALIDITY. 
 
 Knowledge — How Requisite. 
 
 cashed at the bank at S., or that there was any usage from which the defendant 
 had reason to suppose it would be collected through that bank." ' Lime Book 
 Bank v. Bewetf is a still better example of this rule. Two notes, one made 
 payable at the Lime Rock Bank and the other not so payable, were indorsed by the 
 defendant, who lived in the same town, and notices of dishonor were sent to him 
 by post, according to the custom of the bank. The court held that as to the 
 note payable at the bank the notice was good, and the defendant was bound; 
 but as to the other, he was not bound. " Where the parties to a note or bill of 
 exchange live in the same town," said Appltston, C. J., "a demand upon the 
 maker and notice through the post-offlce are not sufficient to charge the 
 indorser. * * * The larger note in suit was payable at and transferred 
 by the defendant to the bank. By indorsing a note thus payable he may 
 well be presumed, knowing the usages of the bank, to have assented to, 
 and to have agreed to be bound by them. * * * But the note for $300 
 was not made payable at any bank. There was no proof that the defendant 
 knew that it would, or assented that it should be discounted by the plaintiffs. 
 He is not the last indorser. Nor is he, by the mere fact of a prior indorsement, 
 to be presumed to have waived, as to this note, the usual notice of demand and 
 non-payment. Notice through the post-office would not be binding upon him." 
 So, it cannot be presumed that a person has knowledge of the customs of banks 
 at places distant from that in which he himself lives and does business.' And 
 though dealers with a " clearing-house " will be bound by its usages, they cannot 
 bind persons not parties to the association.* It was held in Kirchner v. Venus^ 
 that persons living in Sydney, Australia, would not be presumed to be acquainted 
 with a mercantile usage existing at Liverpool. 
 
 § 28. Person ignorant of a Usage cannot take Advantage of it. — A usage 
 is equally inadmissible if it can be shown to have been unknown, at the time of 
 the contract, to the party setting it up and seeking its benefits, for in such a case 
 there would be no presumption that the contract was made vrith reference to it." 
 
 § 29. Proof of Knowledge by a single Instance. — Though a single instance 
 of a certain practice will not prove a usage, yet it is sufficient to bring home 
 notice of such a usage, already established, to a person sought to be bound 
 by it. 
 
 § 30. A Custom must be Moral. — A custom must be moral; that is to say, 
 it must not be of doubtful morality .^ There was a custom which prevailed in 
 Scotland in olden times that gave to the lord of the fee the right of concubinage 
 with his tenants' wives on their wedding-nights.' Though it is denied that this 
 custom ever flourished in England,'" there Is no doubt that such a right was never 
 
 1 Mohawk Bank v. Broderiok, IS Wend. « Nonotuck Silk Co. v. Fair, 112 Mass. 364. 
 '8'- And see Fowler v. Pickering, 119 Maas. 33. 
 
 2 63 Me. 51. 7 Dorchestev, etc., Bank v. New England 
 » Morse on Banks, 438; Bank of Washing- Bank, 1 Cash. 177. 
 
 ton V. Triplett, 1 Pet. 26. » Wellman v. Nutting, 3 Mass. 434. 
 
 » Overman v. Hoboken City Bank, 30 N. '2 Bla. Comm., chap. 6, p. S3. 
 
 •'■ ^- "l- '" Gerald's Case, 23 How. St. Tr. 1407, note. 
 
 ' 12 Moo. P. 0. 0. 361. 
 
A CUSTOM MUST BE MORAL. 59 
 
 The Custom of "Bundling." 
 
 claimed in the courts; for, had it been, it would certainly have been held bad on 
 account of its immorality. In America we find a trace in the reports of a custom 
 equally curious, though less shocking, which grew up in the austere society of 
 early New York. In "Knickerbocker's History of New Tork" we have the 
 following explanation of the causes which prevented a decrease of population in 
 spite of the persecutions, and burnings, and hangings of Quakers and witches : 
 "But, notwithstanding the fervent zeal with which this holy war was prose- 
 cuted against th§ whole race of unbelievers, we do not find that the population 
 of this new colony was in anywise hindered thereby ; on the contrary, they multi- 
 plied to a degree which would be incredible to any man unacquainted with the 
 marvellous fecundity of this growing country. This amazing increase may, 
 indeed, be partly ascribed to a singular custom prevalent among them, commonly 
 known by the name of ' bundling,' a superstitious rite observed by the young 
 people of both sexes, with which they usually terminated their festivities, and 
 which was kept up with religious strictness by the more bigoted part of the 
 community. This ceremony was likewise, in those primitive times, considered 
 as an indispensable preliminary to matrimony, — their courtships commencing 
 wlure ours usually finish, — by which means they acquired that intimate acquaint- 
 ance with each other's good qualities before marriage which has been pronounced 
 by philosophers the sure basis of a happy union. Thus early did this cunning 
 and ingenious people display a shrewdness of making a bargain which has ever 
 since distinguished them, and a strict adherence to the good old vulgar maxim 
 about 'buying a pig in a poke.' To this sagacious custom, therefore, do I 
 chiefly attribute the unparalleled increase of the Yanokie or Yankee race ; for it 
 is a certain fact, well authenticated by court records and parish registers, that 
 wherever the practice of ' bundling ' prevailed, there was an amazing number of 
 sturdy brats annually born unto the State without the license of the law or the 
 benefit of clergy. Neither did the irregularity of their birth operate in the least 
 to their disparagement. On the contrary, they grew up a long-sided, raw-boned, 
 hardy race of whoreson whalers, wood-cutters, fishermen, and peddlers, and 
 strapping corn-fed wenches, who, by their united efforts, tended marvellously 
 towards peopling those notable tracts of country called Nantucket, Plscatanay, 
 and Cape Cod." 
 
 Seagar v. Sligerland,'- which arose in New York in 1804, seems to have been 
 the first case in which the custom of " bundling " engaged the attention of the 
 courts. Its result was followed in a Pennsylvania case in 1845. In this case, 
 which was also an action for seducing the plaintiff's daughter, the daughter, 
 being called as a witness on the trial, testified that she was twenty-three years 
 old, and single ; she had a child, of which the defendant was the father, and 
 which was about a year old; she lived with her father when her child was 
 begotten, and when it was born; her mother was deceased, and she kept house 
 for her father; she had been at a battalion training, and the defendant went 
 home with her; they took supper, and very soon went to bed together; the child 
 was begotten that night, but the defendant was there twice afterwards, and 
 slept with her both times. This, she further testified, was according to the 
 custom of the country, and her father knew of it, and knew that the defendant was 
 
 ^ Ante, p. 9. 
 
60 ON THE KEQUISITES TO THEIR VALIDITY. 
 
 The Custom of "Biinclling." 
 
 sleeping with her on the night of the battalion training. Her father was not in 
 the same room with them, but he saw her in bed with the defendant. The girl's 
 brother was then called, and testified that he saw the defendant at his father's 
 house on the night of the battalion training, and that he saw the defendant and his 
 sister in bed together on that night. A number of other witnesses were called, 
 and spoke to the good character of the plaintiff and his family, and of his daughter 
 except in this matter. The judge, after stating to the jury the grounds of the 
 action for seduction, said: "This action is always founded on » wrong done by 
 the defendant, and as regards the will and consent of the father, the daughter is 
 supposed to be violated with force. It is this absence of consent on his part, 
 this violation of his daughter's chastity against his will, that entitles him to 
 sustain his action for a compensation in damages. When the criminal inter- 
 course has been had with his knowledge and under his connivance, he would 
 seek redress with but an ill grace indeed. He would not actually be a particeps 
 criminis, but in want of decency and in breach of parental duty he would 
 approach very near to it. His indifference to his daughter's morals and chastity 
 would meet with but a just retribution in her misfortune and disgrace. The 
 fault would be as much his own as her's or her seducer's; and his assurance in 
 coming to cour,t to ask for a reward for the perpetration of a wrong which was 
 known to him, and which he might have prevented, would justify the belief that 
 he had no objections to its commission." As regards the custom set up to 
 excuse the plaintiff's neglect, the judge said: "Much has been said by the 
 plaintiff's counsel about the custom in courtship which he has denominated 
 ' bundling.' He has said that this custom prevails very generally in the part of 
 the country where these parties reside. This may be so, but I am unwilling to 
 believe it. If it is so, it is time the custom should be abolished. Even if this 
 custom does prevail, it furnishes no excuse for the plaintiff's carelessness or 
 his daughter's indiscretion. If it be any excuse, it would extend equally to 
 all concerned, and the defendant might claim his portion of protection under it 
 also. The plaintiff has by this time, I apprehend, found out that this custom is 
 dangerous, at least, if he does not feel that it is indecent. A man who takes no 
 pains to abolish this custom in his own house has no right to complain of con- 
 sequences which most naturally follow." The jury returned a verdict for the 
 defendant.' 
 
 Holmes v. Johnson;' decided in the Supreme Court of Pennsylvania in 1862, 
 illustrates this rule in another phase. The case was an action of ejectment 
 growing out of a disputed title to land, the plaintiff being a negro born in 
 another State, and the defendant, in order to rebut the presumption of marriage 
 and legitimacy from cohabitation, offered to prove that in the region from which 
 the negro came -the eastern part of Maryland -It was not the custom for 
 colored people to form legal marriages- that marriage among them was the 
 exception, and not the rule ; that the majority of them cohabited promiscuously, 
 and that this mode of promiscuous cohabitation was the custom there among 
 free colored persons as well as slaves. This evidence, it was held, was properly 
 rejected. "A custom, however ancient," said Read, J., " if contrary to mo- 
 rality, religion, and the law of the land, cannot be a legal one, and it is clearly 
 
A CUSTOM MU.vr BE MORAL. 
 
 Gl 
 
 The Charivari. 
 
 unreasonable, and cannot be compulsory. Tried by this standard, the rejection 
 of this offer to prove such a custom, so contrary to the moral sense of a 
 Christian community, was eminently proper. We have never heard of such a 
 custom being attempted to be proved in England^" ' 
 
 In a North Carolina case, a prosecution for adultery,, there was evidence that 
 in a playful scuffle between the parties, in the presence of the defendant's wife 
 and others, the woman fell, or was pulled, into the defendant's lap. The State 
 insisted that such familiarity was evidence of guilt, to which the defendant 
 replied that while this might be so in high life, yet such acts of familiarity 
 were common in that section among plain people, such as the defendants were, 
 and that they were regarded as innocent sport. The court having left it to the 
 jury to say whether or not such acts were customary, the defendant was con- 
 victed, and on appeal the Supreme Court expressed its sympathy with the 
 " indignation and horror " of the trial judge at the attempt to set up so immoral 
 a custom.'' 
 
 But, where adultery is sought to be proved by circumstantial evidence, as by 
 proof of the disposition of the persons charged and the opportunity to commit 
 the act, it seems clear that the social habits and customs of the parties, and of 
 the community in which they reside, are relevant.' As said in an English case : * 
 " It is manifest that the opinions--of mankind may vary very much as to the cir- 
 cumstances from which the inference of adultery is to be drawn. The opinions of 
 the j ury may depend upon the sort of society in which they have lived — whether 
 they were accustomed to associate with people who were strict and careful, or 
 with people who were free and easy and somewhat careless in their conduct. 
 One set of men may think that if a married woman indulges in any improper 
 familiarity with a man, she would be likely to commit adultery; whilst another 
 set may think that a great degree of license may exist, and yet that a woman 
 would stop short of committiug the great offence." 
 
 Another American custom of doubtful morality is the charivari, a word which 
 Dr. Johnson's Dictionary does npt contain, but which is defined by Webster 
 thus: "A mock serenade of discordant music, kettles, tin horns, etc., de- 
 signed to annoy and insult. It was at first directed against widows who 
 married a second time, at an advanced age, but is now extended to other occa- 
 sions of nocturnal annoyance and insult." It is not surprising to find that the 
 courts have not been eager to indorse this practice, nor that in two instances, 
 at least, it has been unprofitably advanced as an excuse for cerjp,in illegal acts. 
 In Pennsylvania, in 1796, Samuel Lewis, Charles Hobbes, Isaac Hobbes, Nathan 
 Lewis, and Isaac Braden were indicted for the murder of John Weston. On the 
 5th of the previous November there was a wedding at Weston's house, to which 
 the prisoners went, though only one of them was invited. Weston, who was 
 
 1 The opinion also refers to certain im- houses; where the very shopkeepers make 
 
 moral customs in London, citing Irom the a profession of atheism, and encouragte their 
 
 London Quarterly Sevieto of April, 1861: poor customers to do the same." 
 
 " We could name entire quarters in which it i The State v. Butner, 76 N. C. 118. 
 
 seems to be a custom that men and women ' Inskeep v. Inskeep, 5 Iowa, 204; Berck- 
 
 should live in promiscuous concubinage ; mansu.Berckmans, 16N. J. Eq. 122; 17N. J. 
 
 where the most frightful debauchery goes Eq. 453; King «. King, 4 Scotch Sess. Cas. B83. 
 
 on, night and day, in the lowest public * Gothin v. Gelhin, 2 Sw. & Tr. 560 
 
62 ON THE KKQUXSlTJiS TO THlilK VALIDITY. 
 
 Customs must be Peaceable. 
 
 rather suspicious of them, told them that they were welcome if they behaved 
 themselves ; and everything went well until the evening, when, the guests being 
 engaged in dancing in an out-house, the prisoners began to be troublesome, 
 shoved the dancers off the floor, fought sham battles among themselves, and 
 broke up the company. They stood in a row against Weston, who was an old 
 man seventy-three years of age, and pushing one against another, forced him to 
 the wall. Notwithstanding his protests, they continued to Ill-use him for some 
 time, he being frequently thrown to the ground in the scuffles that ensued, all the 
 prisoners on one occasion falling on top of him. Weston afterwards left the 
 out-house and went into his dwelling, shutting the door; but the prisoners came 
 after him and burst it open, mocked him, pushed him and his wife oft their 
 chairs, and after leaving the house, threw stones through the windows and down 
 the chimneys. The old man then went out to remonstrate, but the rioters 
 knocked him down and kicked him. They continued there all that night and 
 part of the next day. In the morning Weston complained of his hurts, and in 
 the evening took to his bed, and died from their effects. On the trial, it was 
 urged by the prisoners' counsel that they "did nothing more than a usual 
 frolic, according to the customs and manners of the country. There was no 
 intention of hurt, no design of mischief, in which the malice which is the neces- 
 sary ingredient of murder consists." But the State attorney replied: " T^e have 
 no custom in this country of killing old men at weddings. The Indians have a 
 custom of killing one another when drunk; and if we indulge such practices as 
 have appeared in this case, we shall soon be as barbarous as the savages of the 
 wilderness." And the president of the court charged the jury that sport could 
 not exclude the presumption of malice, and the prisoners were convicted of 
 murder In the second degree. ^ Again : in Indiana, in 1853, Jesse Bankus, Lewis 
 Simpson, William Woods, and William McShirely were indicted for riot, in hav- 
 ing surrounded the house of one Jacob Wise, blowing horns, singing, and hal- 
 looing, to the disturbance of the neighborhood. The Supreme Court said: " It 
 is urged that these defendants were but acting In accordance with the custom of 
 the country. But a custom of violating the criminal laws will not exempt such 
 violation from punishment." And the judgment of conviction was affirmed.' 
 
 § 31. A Custom must be Peaceable, and acquiesced In. — A custom must 
 have been peaceable, and acquiesced in, and not disputed at law or otherwise ; 
 for customs owe their origin to common consent, and this cannot be intended in 
 disputed cases.' If it has been the subject of contention and dispute it has 
 not recommended itself as expedient to all, and the fact that it has proved a 
 convenience to some, is counteracted by the fact that it has also proved an 
 inconvenience to many. But the non-consent of these is as powerful as the 
 consent of those; and as customs, to be valid, owe their efficacy to common 
 consent, the fact that they have been immemorially disputed proves that 
 universal consent was wanting.* Notwithstanding a contrary dictum in an Ala- 
 bama case,^ it is settled, and upon good reasons, that a usage of trade must be 
 
 > The State v. Lewis, Add. 279. t Browne on Usages and Customs, 18. 
 
 2 Bankus d. The State, 4 Ind. 114. 6 ■< it is not indispensable to the validity of 
 
 ' Dane's Abr., chap. 2(1, art. 1, § 3 ; Archer a usage of trade that it should be universally 
 
 V. Bokenham, 11 Modern, liil. acquiesced in ; for this would be to annul aU 
 
A CUSTOM MUST BE PEACEABLE. 63 
 
 Illustrations. 
 
 generally assented to as well as asserted before it can be established; it must be 
 acquiesced in by all persons acting within the scope of its operations.' Where 
 it has been the subject of controversy and contention, claimed by one class and 
 denied by another, and only submitted to under protest and to avoid litigation, 
 It cannot be presumed to have been so acquiesced in as to have entered into and 
 formed a part of the contract. A valid usage must be not only submitted to, 
 but should receive at least the tacit acquiescence of all classes engaged in the 
 trade which it is sought to affect and control.^ Evidence offered to prove a 
 custom on the part of carriers for an intermediate carrier to deduct from the 
 freight earued by a prior carrier the value of any deficiency between the quan- 
 tity delivered and that stated in the bill of lading, the prior carrier not being 
 permitted to show that an error occurred in stating the amount in a bill of 
 lading, was held, in a Michigan case, not sufficient to show the necessary acqui- 
 escence, CooLEY, C. J., in his opinion, reviewing it in this language : " The 
 testimony of witnesses shows that the question of shortage is frequently the 
 subject of dispute. Capt. Elsie says: 'The custom is sometimes acquiesced 
 in by the captains of vessels, and sometimes disputed. If the shortage is small, 
 they generally pay it; if it is large, they generally dispute it, and leave it to be 
 settled by the owners.' Mr. Stephenson, the general fr^ght-agent of the 
 defendants, says : ' I have known captains to refuse to pay the shortage, but we 
 always have the freight in our own hands before we settle. We invariably refuse 
 to pay the captains until the two principals are agreed.' Capt. Montgomery, 
 after testifying that the custom is universal, says : ' I have known the question 
 of shortage disputed at least a hundred times.' Several other witnesses give 
 evidence that the custom is general, but the impression which the whole evi- 
 dence leaves in our minds is, that the deduction of shortage is submitted to 
 when the carrier concedes that It is his fault, or where the amount is not beyond 
 what is usual and incident to transportation, but that it is disputed in other 
 cases. A custom varying the common law must be clearly proved; but we do 
 not find clear evidence in this case that ship-owners concede their liability to 
 have deductions made from freight earned for the value of property receipted 
 for by mistake. That the railway companies assert the right, is fully shown ; 
 but it must be generally assented to, as well as asserted, before the custom can 
 be established." * 
 
 §32. A Custom must be reasonable. — The rule that a custom must be 
 reasonable may be better stated negatively, viz. ; a custom must not be unrea- 
 sonable. An unreasonable custom is bad, and will not be recognized by the 
 courts of law.* The words "not reasonable," as used in this connection, are, 
 
 customB as to those who were unwilling to 2 Dixon v. Dunham, U 111. 324. 
 
 abide by them. Instead of having the force ' Strong v. Grand Trunlt E. Co., 15 Mich 
 
 of law and being of general obligation, they 206. 
 
 would depend for their operation upon the * Rogers v. Brenton, 10 Q. B. 26; Hilton v. 
 
 gratuitous assent of every person against Granville, Dav. & M. 614 ; 5 Q. B. 701- Hix v 
 
 whom they were invoked." Desha ». Hoi- Gardiner, 1 Bulst. 195; Eex v. Gordon 1 
 
 land, 12 Ala. 513. Barn. & Aid. 524; Bremner v. Hull, L.'r 
 
 1 Strong V. Grand Trunk R. Co., 15 Mich. 1 O. P. 748; 12 Jur. (N. 8.) 648- Wilkes v 
 
 205; MoMasters v. Pennsylvania E. Co., 69 Broadbent, 1 Wils. 63; 1 Dane's Abr., chap 
 
 Pa. St. 374. 26, art. 1, § 4 ; Clayton v. Corby. 5 Q. b'. 415. ' 
 
64 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Reasonableness. 
 
 according to Mr. Browne, to be understood in a legal sense ; and in coining to a 
 conclusion as to what customs are reasonable and what unreasonable, regard 
 must be had to the legal decisions which have been made in times past upon 
 cases involving similar questions ; for " reasonable," says Coke, " is not always 
 to be understood of every unlearned man's reason, but of the artificial and legal 
 reason warranted by authority of law." ' Therefore, a custom may be good 
 though the particular reason of it cannot be assigned, for It suffices if no good 
 legal reason can be assigned against it. A custom is not unreasonable merely 
 because It is contrary to a particular rule or maxim of the common law; other- 
 wise gavelkind and borough-English, which are directly contrary to the ordinary 
 law of descent, or the custom of Kent, which is contrary to the law of escheats, 
 would not be valid customs ; indeed, it is the very essence of a custom that it 
 should vary from the common law.^ As we shall see hereafter, when we come 
 to consider the validity of commercial usages which conflict with settled rules of 
 law, a custom is not bad simply because it alters an established rule ; yet, at the 
 same time, there are certain rules of law which are founded on public policy, 
 and which cannot be disturbed without injury to all concerned. Customs con- 
 trary to these rules are, therefore. Invalid.' 
 
 § 33. Customs beneficial to the Public Good, tbougli injurious to some. — A 
 custom is not unreasonable simply because it is injurious to private persons or 
 interests, if it be for the public good. Examples of such customs may be seen 
 in those which allow the pulling down of houses to prevent the spreading of a 
 conflagration, and which permit one to turn his plough on the headland of another ; 
 the former may stop a great public calamity, the latter favors and promotes 
 agriculture.* In this class fell the custom in Voughton v. Atwood,^ for surveyors, 
 duly chosen, to destroy corrupt victuals exposed to sale. Atwood and others 
 were sued in trespass for taking away the meat of the plaintiff, who was a 
 butcher. The defendants justified by virtue of a custom of the manor by which 
 each year two surveyors were chosen to inspect the victuals sold within the 
 place, and to destroy such as were found to be corrupt, etc. ; that the defendants 
 were such surveyors, so chosen, etc. The Court of Common Pleas sustained the 
 custom. It fvas hard, they said, to disallow it, because the design of it was the 
 preservation of men's health, even though to allow It were to give men too great 
 a power of seizing and destroying other men's goods. So, the custom of a city 
 to make a by-law to oblige a person to take an office, under a penalty .« So, too, 
 the custom that where a duty was payable on corn imported into a city, citi- 
 zens, being factors, were exempt from it; this in encouragement of trade.' 
 Also, to dig gravel in the adjacent land to repair a way ; ^ to have a watering- 
 place in the adjacent land; » to dig for ballast; '» to dry nets ou another's land; " 
 
 1 Browne on Usages & Customs, 19; Co. « City of London v. Vanacre, 12 Modern, 
 lilt. 62. 2gg. 
 
 2 Horton «. Bectman, 6 Term Rep. 760; ^ Oocksedge ii. Fanshaw, 1 Doug. 119. 
 Tyson v. Smith, 9 Ad. & E. 421. 8 Dane's Abr., chap. 26, art. 2, S 1. 
 
 » Post, Chap. V. 9 /6irf. 
 
 * Dane's Abr., chap. 26, art. 1, § 9; 3 Salic. i« Ibid. 
 
 112; Fawcet v. Lowther, 2 Ves. 30O. " lUd. 
 ' I Modern, 302. 
 
A CUSTOM MUST BE REASONABLE. 
 
 65 
 
 Illustrations. 
 
 to cut rashes In the lord's waste for one occupying a house and having common 
 there, as against a stranger; ' to distrain the goods, etc., of a ship for the port 
 duties ; ' for the lord of the manor to have toll for all goods landed at a wharf, in 
 consideration of his keeping it in repair; » to take three bushels of barley out of 
 every ship's cargo brought to a certain quay to be exported ; * for all the freemen 
 and citizens of a town, on a particular day in the year, to enter upon a close for 
 the purpose of horse-racing.* In Marquis of Salisbury v. Gladstone,^ which was 
 an action of ejectment for a forfeiture by a lord against a copyholder of inheri- 
 tance, for digging and taking away clay from the manor, to be sold off the manor 
 to any one, the defendant pleaded and proved a custom from time immemorial 
 for the copyholders of inheritance, without license from the lord, to break the 
 surface and dig clay without limit, for the purpose of making it into bricks to 
 be sold off the manor. The custom was held good in law. Its validity being 
 disputed on the ground of unreasonableness, Lord Ckanworth said: "It is 
 true that a custom, to be valid, must be reasonable. It is not easy to define the 
 word 'reasonable,' when applied to a custom regulating the relation between a 
 lord and his copyholders. That relation must have had its origin in remote 
 times, by agreement between the lord, as absolute owner of the whole manor in 
 fee-simple, and those whom he was content to allow to occupy portions of It as 
 his tenants-at-wUl. The rights of these tenants must have depended, in their 
 origin, entirely on the vrill of the lord, and it is hard to say how any stipulations 
 regulating such rights can, as between the tenant and the lord, be deemed void 
 as being unreasonable. Cujus est dare ejus est disponere. Whatever restrictions, 
 therefore, or conditions the lord may have imposed, or whatever rights the 
 tenants may have demanded, all were within the competency of the lord to grant, 
 or of the tenants to stipulate for. And if it were possible to show that before 
 the time of legal memory any lawful arrangement had been actually come to 
 between the lord and his tenants as to the terms on which the latter should hold 
 their lands, and that arrangement had been constantly acted on, I do not see 
 how it could ever be treated as being void because it was unreasonable. 
 In truth, I believe that when It is said that a custom is void because it is unrea- 
 sonable, nothing more is meant than that the unreasonable character of the 
 alleged custom conclusively proves that the usage, even though it may have 
 existed immemorially, must have resulted from accident or indulgence, and not 
 from any right conferred in ancient times on the party setting up the custom." ' 
 
 § 3i. Customs not unreasonable 11 simply inconvenient. — It was an old 
 rule, in considering the validity of customs, that a custom should not be con- 
 sidered unreasonable merely because it might be inconvenient. Thus, a custom 
 for all the inhabitants of a parish to play at games in a particular close was 
 good, though if they were all to go there at the same time the object might 
 become impossible. So, a custom for fishermen to dry their nets on land ad]a- 
 
 ' Beau o. Bloom, 3 Wils. 468. Jur. (N. s.) 306; 32 L. J. (Exch.) 94; 11 Week. 
 
 2 Winckesline v. Ebden, 12 Moaern, 216. Eep. 270 ; 3 Hurl. & Colt. 486. 
 
 « Oolton V. Smith, Oowp. 47. « 9 H. L. Cas. 692. 
 
 * Sei-jentiJ.Eead, IWils. 91. » And see Bishop ol Winchester ti. Knight, 
 
 s Mounsey v. Ismay, 1 Hurl. & Colt. 729 ; 9 1 P. Wms 406 ; Dean of Ely v. Warren, 2 Atk. 
 
66 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Reasonableness. 
 
 cent to the sea is good, though if all were to resort there at the same time, 
 great inconvenience would follow. So, all the subjects of the kingdom have a 
 right to enter a port, even though a small port might be speedily filled. It 
 would be immaterial to the validity of this last custom that all people could not 
 exercise this right at the same time. Many of the old English cases illustrate 
 this rule. In Hix v. Qardiner,'^ a custom for all Inhabitants within a manor to 
 grind their corn at the mill of the lord of the manor was held to be good. In 
 Drake v. Wiglesworth,'^ the custom was for all the householders of the parish 
 to grind all the corn which should be used by them, in their respective houses, 
 and to pay for the grinding thereof a reasonable toll, and it was held good. In 
 Cocksedge v. Fanshaw,^ a custom for the corporation of London to receive a toll 
 of one farthing on all com was sustained. In Tyson v. /Smith,* an action of 
 trespass, the custom set up was for all victuallers to erect booths on a common, 
 a reasonable time before the feast of Pentecost. It was argued that the custom 
 was unreasonable, because too extensive. But it was sustained by the King's 
 Bench, and afterwards by the Court of Exchequer Chamber. " The plaintiff's 
 arguments to show that this custom was bad in law," said Denman, C. J., in 
 the King's Bench, " resolved themselves into the objection that it was too large 
 and indefinite, as admitting all victuallers, an undefined body, who might cover 
 the whole land in question, to the exclusion of the plaintiff himself, and all 
 others wishing to attend the fair, during a considerable time of the year. But, 
 in the absence of all authority, we are of opinion that the custom is good. The 
 description of a victualler is sufficiently definite, and the attendance of that 
 class of persons at a fair is convenient, or rather necessary, for the refreshment 
 of those resorting to it. The exclusion of the owner from his own soil may 
 certainly be lawful by virtue of reasonable custom, and the exclusion for the 
 whole period may be necessary to induce the victualler to bring his booth to a 
 spot possibly so distant that frequent removals and reerections might reduce his 
 profits to nothing. And the apprehension that the resort of victuallers might be 
 so numerous as to interfere with all others who may have business to transact 
 at the fair, appears to us unreasonable and extravagant. If it could prevail, it 
 must indeed extinguish the fair itself, to which all traders of every class may 
 resort for the purpose of vending their wares, while due regard to their own 
 interest must limit their actual attendance to such a number as appears likely 
 to have a fair chance of trading successfully." " But it is said," remarked 
 TiNDAL, C. J., in the Exchequer Chamber, " that the number of these victuallers 
 may be so large, and the space occupied by each so great, as that the whole 
 portion of the common set out for the fair may be taken by them, in exclusion 
 of the rest. If this argument were to prevail, it is manifest that it would he 
 equally applicable with respect to every particular branch of traders who frequent 
 the fair; the sellers of corn or of cattle, the persons who deposit their cloth, 
 the dealers in earthen-ware, and the like, might with equal show of reason he 
 stated, by possibility, to become occupiers of the whole ground, to the exclusion 
 of the rest. But it is obvious that this is not an argument against the custom 
 being reasonable in its original commencement, or against the prescription for 
 
 I 1 BulBt. 195. » 1 Doug. 119. 
 
 « Willes, 654. « 1 Nev. & P. 784 ; 1 Per. & Dav. 307. 
 
A CUSTOM MUST BE KEASONABLB. 67 
 
 Illustrations. 
 
 the fair being a reasonable prescription ; it is an objection only to the mode of 
 exercising the rights so claimed, whether under the custom or the prescription. 
 An inconvenience of this description will provide its own remedy; if it occijrs 
 once, it will not be likely to occur again. It is in the highest degree improbable 
 that it should ever occur again at all. A little previous inquiry will at all times 
 prevent its recurrence. And in Bennington v. Taylor,^ whei'e it was objected 
 that a prescription was uncertain, and therefore void, vfhich claimed toll for a 
 stall, and the land 'prope etdrca stallam,' etc., the objection was not allowed; 
 for this, it was said, ' shall be ascertained by the usage of. the fair.' And these 
 are precisely the points of consideration to which the judges must advert when 
 called upon to determine whether the custom is void or not. It is not void as 
 being against law; and if alleged to be void because inconvenient in a high 
 degree in its enjoyment, and therefore unreasonable, they must look to the 
 probabilities of the case, and be satisfied that the inconvenience is real, general, 
 and extensive, before they hold a custom bad upon that ground, which a jury 
 have found to exist and to have been acted upon from beyond the time of legal 
 memory." 
 
 § 35. Customs injurious to the Public bad, thougli lieneflcial to some. — On 
 the other hand, a custom that is contrary to the public good, or injurious or preju- 
 dicial to the many and beneficial only to some particular person, is repugnant to 
 the law of reason, and void ; such a custom could not have had a reasonable 
 commencement. Examples are present in the custom set up in a manor on the 
 part of the lord, that the commoner cannot turn in his cattle until the lord has 
 put in his own ; this is clearly bad, being injurious to the multitude and bene- 
 ficial only to the lord. So, a custom that the lord of the manor shall have a 
 certain sum for every pound breach of any stranger, or that the lord of the 
 manor may detain a distress taken upon his demesnes until fine be made for the 
 damage, at the lord's will. So, a custom in restraint of trade.^ So are customs 
 for parishioners, on the perambulation of the boundaries, to go through a par- 
 ticular house situated in the parish, but not upon the boundary line ; ° for the 
 inhabitants of a parish to exercise and train horses, at all seasonable times of 
 the year, beyond the limits of the parish.* In all these instances, and many 
 others which are to be found in the books, the customs are held to be void, on 
 the ground of their having had no reasonable commencement, but as being 
 founded in wrong and usurpation, and not on the voluntary consent of the 
 people to whom they relate.* 
 
 § 36. The Existence of unreasonable Modem Usages doubted. — Chief 
 Justice Thompson, of Pennsylvania, in McMasters v. Pennsylvania Mailroad Gom- 
 yjaM!/," thought that in modern times it would not be likely that anything which 
 was not reasonable would be suffered to grow into a custom; and Cheeves, J., 
 in an earlier South Carolina case,' expressed a similar opinion. " It is argued," 
 
 1 2 Lutw. R. C. 1.517. 5 Smith v. Tyson, 1 Per. & Dav^ 307. 
 
 2 Mayor oil Winton i>. Wilke, 11 Modern, 48. « 69 Pa. St. 374. 
 
 ' Taylor v. Devey, 7 Ad. & iS. 409; 2 Nev. ' Barksdale v. Brown, 1 Nott & M. 517; 9 
 
 Ac P. 469; 1 Jur. 893; W. W. & D. 646. Am. Dec. 720. 
 
 1 Sowerby ». Coleman, L. E. 2 Exch. 96; 
 :i6 L. J. (Exch.) 57. 
 
68 ON THE KEQUISITB8 TO THEIR VALIDITY. 
 
 Reasonableness. 
 
 said he, " that this usage is unreasonable, and therefore not a good usage. X 
 know we frequently say that a usage, to be binding, must be reasonable; 
 but I very much doubt whether this is not a mistaken view of the subject, and 
 drawn from a supposed, but not real analogy between commercial usages and 
 common-law customs. I doubt whether there can be a commercial usage which 
 can be deemed so palpably unreasonable as not to be binding. A usage so 
 unreasonable can never grow up. The free course of trade will not permit if; 
 as well might a plant vegetate under a great incumbent weight. That it is a 
 usage Is itself a proof of its reasonableness, so irrefragable that no abstract 
 reasoning can explain it away. The real inquiry ought to be : Is it a usage ? Has 
 it been sufficiently established? To establish a usage, it ought to be proved 
 to be so general, uniform, and frequent as to warrant an inference that the 
 party against whom the benefit of it is claimed had a knowledge of it, and con- 
 tracted with reference to it." Nevertheless, as a matter of fact, numerous 
 usages have been set up in very recent times that the courts have been obliged 
 to declare unreasonable. 
 
 J 37. TJaages prima facie reasonable — The Test of their Reasonableness. — 
 But proof that a custom is general and established raises a presumption that 
 it is reasonable. As said in Cox v. Charleston, etc., Insurance Company,^ "Proof 
 of a general custom furnishes a strong reason why we should regard it as rea- 
 sonable. It must be sanctioned by general concurrence in its use for several 
 years, before it can be said legally to exist. If it was unreasonable, and of 
 course without necessity, reasonable and prudent men would not continue to 
 peril, both life and property to give it existence. From proof of it as the general 
 custom of the trade, we are bound, at least prima facie, to conclude that it is 
 reasonable." And it is to be remembered that usages apparently unreasonable 
 may have been so long continued as to have acquired the force of law, and the 
 unreasonableness now apparent may have grown out of changes occurring after 
 the usage was established. In such a case a court must take it as it finds it, and 
 give its judgment in accordance thereto. But when a question is first presented 
 as to giving legal effect to a usage proved to exist, where its binding force or 
 its admissibility is denied by one of the parties to the cause, a court will not 
 enforce or sanction it unless it be reasonable and convenient, and adapted not 
 only to increase facilities in trade, but to the promotion of just dealings between 
 parties.^ Subject to these exceptions, it is settled that if a usage leads to con- 
 sequences which are absurd, or which could not be fairly presumed to have been 
 contemplated by the parties, the presumption is repelled which the law might 
 otherwise make, that it was intended to be adopted as part of the contract. 
 Therefore, courts of law will not enforce unreasonable or absurd usages, how- 
 ever uniform and well known. Parties, in framing their contracts, have a right 
 to disregard them, and cannot be held to have entered into written stipulations 
 with any reference to them.' But there is little doubt that a usage known to a 
 person, and In accordance to whose burdens and obligations he has contracted, 
 would not be set aside by a court of law simply because it was unreasonable. 
 
 3 Rich. L. 831. s Seccomb v. Provincial Ins. Co., 10 Allen, 
 
 ' Hubbard, J. , In Macy v. Whaling Ins. Oo., 805. 
 « Meto. 354. 
 
UNREASONABLE USAGES. 69 
 
 Vendor and Purchaser. 
 
 A man may, with his eyes open, make an absurd, oppressive, or unreasonable 
 contract, and bind himself to the performance of strict and onerous obligations, 
 yet a court of law will not for this reason interfere.' 
 
 Tested by these considerations, the following usages of modern growth have 
 been declared unreasonable — and for that reason invalid — in the following 
 relations : — 
 
 §38. Unreasonable Usages — Between Vendor and Purchaser. — In the 
 relation of vendor and purchaser these are unreasonable : A custom authorizing, 
 on a contract for goods of a specified character, the delivery of different goods, 
 or on a sale of the goods of one mill, the delivery of the goods of another mill ; ' 
 a usage that sales of a particular class of goods are subject to the approval of a 
 public inspector, but that if there is no such inspector, a buyer may rescind his 
 purchase at pleasure ; ' a usage that no title passes, upon an ordinary sale and 
 delivery, without actual payment of the consideration within a certain number of 
 days ; * a custom that if a note is given for a gold-mine, and it proves unpro- 
 ductive, or does not turn out according to expectation, it is given up ; ^ a custom 
 for merchants to sign receipts presented by cartmen with goods, without any 
 inquiry on the part of the receiving-clerk or porter as to their ownership or the 
 place from which they were received ; * a custom of a board of trade, on cash 
 sales of produce or provisions, giving the buyer the privilege of having them 
 inspected at his own expense, but if he accepts them without Inspection, he 
 takes them at his own risk as to quality, even if the vendor occupies a position 
 where he may be supposed to know the quality of the goods, and the vendee 
 relies upon this supposition ; ' a custom among dealers in cotton that warehouse- 
 receipts to deliver to a person, or order, or bearer, the number of bales therein 
 specified, are transferable by delivery without indorsement, and that such 
 transfer passes the cotton without inquiry as to title, unless notice is given that 
 the receipts have been lost, or have got into the hands of one not the owner 
 or not entitled to them;" a usage that where the vendor of goods receives a 
 note of the consignee, without the indorsement of the purchaser, the latter is 
 discharged, and the maker alone remains liable ; » a custom among merchants 
 
 1 See remarks ol Cleasby, B., in Maxted those affairs, owes to anotlier." Daniels, J., 
 
 V. Paine, L. K. i Exoh. 210. in Gallup v. Lederer, 1 Hun, 282. 
 
 ' Beals V. Terry, 2 Sandf . 127. ' Chicago Packing Co. v. Tilton, 87 111. 548. 
 
 » Boardman v. Spooner, 13 Allen, 353. ' "None but good customs have any va- 
 
 » Haskins v. Warren, 116 Mass. 514. lidity. A custom that has a tendency to 
 
 ^ "If there he such a custom, it is so ua- tempt parties to acts of wrong-doing, bad 
 
 reasonable that it was probably enforced by faith, or dishonesty, cannot be a good cus- 
 
 the bowie-knife." Leonard v. Peeples, 30 torn. A bad custom ought to be abolished. 
 
 Ga. 61. Mahis urns est abolendus." Peck, 0. J., in 
 
 ' " Entirely unreasonable, because it Lehman v. Marshall, 47 Ala. 362. 
 placed the consequences of one person's » " It is not denied but that the dealing 
 negligence and inattention upon another, in was with the defendant. He bought and re- 
 no way connected with him, having no con- oeived the goods. The plaintiff sent for his 
 trol over his conduct, and for whose acts he money. The debtor had gone to sea. The 
 could be in no proper sense responsible. A note of another was taken by the plaintiff "s 
 custom tolerating oai'elessness and inat- agent. 'So^, would it be reasonable that 
 tention In the ordinary affairs of business the plaintiff should, from this isolated cir- 
 wonld be inconsistent with the legal as well curastance, unaccompanied with any satis- 
 »8 the social duties which one person, in factoiy proof why or wherefore it was done, 
 
70 
 
 ON THE REQUISITES TO TllKIK VALIDITY. 
 
 Unreasonable Usages. 
 
 to have their goods sent to their stores by long and circuitous routes, when 
 purchased at the stores of near neighbors ; '■ a custom of a shopkeeper to 
 balance his books annually, and charge interest on the balance of a running 
 account where there has been no settlement.^ 
 
 § 39. Same — Banks and Banking. — A custom of banks to honor the occa- 
 sional overdrafts of customers whose standing is good, is unreasonable,' and so 
 is a custom In banks not to rectify mistakes unless discovered before the person 
 leaves the room; ' but this is not so of a custom which requires every depositor 
 to produce Ms pass-book when demanding payment of a deposit.^ 
 
 be debarred the right of recovering the debt 
 from the true and bona fide debtor ? A cus- 
 tom so unreasonable can never supersede 
 law." Gantt, J., in Prescott v. Hubbell, 1 
 McCord, 94. 
 
 ' " In this case the main question is, 
 whether the acts of Shorey were within the 
 scope of a general design to share the prof- 
 its of the enterprise with Mathes, or whether 
 the goods were obtained on his own credit, 
 or for his own private use and purposes. 
 * * * The plaintiffs, having introduced 
 evidence tending to show that some of the 
 goods in Shorey's store passed into the 
 hands of Mathes, and that in being removed 
 from one store to another they were con- 
 veyed by and through a long and circuitous 
 route, the defendants were not permitted by 
 the court to show the existence of a usage 
 or custom among the merchants of Ports- 
 mouth and Manchester, or elsewhere, to 
 have their goods sent to their stores by long 
 and circuitous routes when purchased at 
 the stores of near neighbors. We think the 
 court properly rejected this liind of testi- 
 mony. The general presumption of law on 
 this subject would naturally be that mer- 
 chants, in the transportation of their goods, 
 will be governed by their true and essential 
 pecuniary interests. That route will be 
 preferred, other things being equal, which 
 is the shortest and cheapest, requiring the 
 least expenditure of money. In general, a 
 custom of merchants must be reasonable in 
 itself. * * * The law will not permit us 
 to presume that the honest merchants and 
 business men of any city in our State would 
 prefer to transport their goods by a long 
 and circuitous route when they had an op- 
 portunity to use one more direct, of equal 
 fitness for travel, and requiring a less outlay 
 for freight. We think it would be suspi- 
 cious, absurd, and unreasonable to assume 
 the existence of such a usage, and it would 
 be in violation of the common exporienoo of 
 mankind, as well as the familiar maxim of 
 
 law. Ad vana et impossiUUa lex non cogit." 
 Nesmith, J., in Jacobs v. Shorey, 48 N. H. 
 100. 
 
 2 " Sanction this, and it is made the direct 
 interest of this class of people to encourage 
 their dilatory customers to run up their 
 accounts with them, knowing that until the 
 time comes for pressing a settlement, their 
 accounts will be drawing interest. When 
 the day of settlement comes, the debtorflnds 
 himself, unacquainted as he generally is 
 with the operation of this principle, in debt 
 to perhaps double the amount he supposed; 
 a judgment and mortgage is the conse- 
 quence, and finally it ends In his property 
 being sold for half its value. To protect the 
 ignorant and unwary, public policy requires 
 that courts of justice should put the seal of 
 reprobation on such implied, unjust, and 
 oppressive agreements. When there is a 
 settlement between them , and a promise to 
 pay Interest, the intention of the debtor is 
 called to the state of the account. If he is 
 wronged, it is his own fault; he then goes on 
 with his eyes open. Interest, in Pennsylva- 
 nia, has already been extended further than 
 in England, or in most of the States of the 
 Union, and it is time for us to pause and 
 consider whether it has not been suffloiently 
 extended." Rogers, J., in Graham v. Wil- 
 liams, 16 Serg. & E. 257; 16 Am. Deo. 669. 
 
 ' Lancaster Bank v. Woodward, IS Pa. St. 
 857. 
 
 * ■'If such a custom does exist, it is con- 
 trary to law, and ought not to meet with the 
 sanction of a court of justice. The law 
 declares that money received thi-ough mis- 
 take shall be refunded; and this ruleof law 
 is founded in morality, which makes part of 
 the law of the land. * * * Such a custom 
 in banking institutions may be an evidence 
 of avarice, but not of the practice of justice 
 among those concerned." Gallatin v. Brad- 
 ford, 1 Hiiib, -iOil. 
 
 15 \Varhus v. Bowery Savings Bank, 5 
 Duer, 67. 
 
UNREASONABLE USAGES. 
 
 71 
 
 Carrier and Customer. 
 
 § iO. Same — Carrier and Customer. — As affecting tlie relations of carrier 
 and customer, these usages have been declared unreasonable and void : A usage 
 lor wharfingers to act as agents in accepting, on behalf of consignees, goods 
 arriving at the wharves ; ^ a usage for the consignee of a vessel, who is also 
 the owner of the cargo, to charge a commission on the freight paid by himself 
 to the captain ; ^ a custom that an intermediate carrier, who received property 
 subject to charges, may deduct from the freight earned by the prior carrier the 
 value of any deficiency between the quantity delivered and that stated in the 
 bill of lading, and that the prior carrier shall not be allowed to show that an 
 error occurred in stating the amount in the bill of lading; ' a usage of a port, 
 that in order to constitute a delivery of goods by a carrier by water, a receipt 
 must be given to the carrier by the consignee or his agent ; * a custom that freight 
 paid in advance may not be recovered back, even though not earned; ° a custom 
 that a notice published in three newspapers in a city, of the time and place of 
 lauding goods by steamboat, is such a notice as places them at the risk of the con- 
 signee ; * a custom among the owners of tow-boats that the first coming along- 
 side of a ship, on a signal for steam, has an absolute towing-contract ; ' a usage 
 requiring those who are in the legal use of the waters as a highway, to yield to 
 others who are using them for an unlawful purpose ; * a custom among carriers 
 and shippers that a contract made between them to furnish and carry coal to a 
 certain port for sale may be thrown up by either, at his convenience, no damage 
 to be claimed from either ; ' a usage of a railroad company requiring claims for 
 
 1 The Middlesex, 11 Law Eep. (N: s.) 114. 
 - Jelison v. Lee, 3 Woodb. & M. 368. 
 
 * "All customs must be reasonable. If 
 the one in question were confined to vesting 
 in the intermediate consignee the same 
 power to refuse to pay freight in cases in 
 which the owner wonid be justified in doing 
 so, it would not exceed the reasonable prov- 
 ince of a mercantile usage. But it goes 
 very much further when it makes the bill 
 of lading conclusive in favor of the inter- 
 mediate carrier, and allows him to make 
 deductions for supposed dcflciencies not 
 in fact existing, which the owner himself 
 would not be permitted to make. And it is 
 specially unreasonable if it deprives the 
 cai-rier of his lien, and remits him to a per- 
 sonal responsibility which he never relied 
 on, whether he is given a remedy in all 
 cases against the consignor, or required to 
 follow the money to the hands of the owner, 
 who will usually reside at a point distant 
 from the place where the exaction is made, 
 and frequently in a foreign country." Ooo- 
 ley, C. J., in Strong v. Grand Trunk B. Co., 
 16 Mich. 206. 
 
 * " It is unreasonable, because it imposes 
 on a carrier the burden of procuring an 
 act to be done by another person, the per- 
 formance of which he has no power to com- 
 pel or enforce, or which, from design or 
 
 accident on the part of others, it may be 
 difficult or impossible for him to cause to be 
 accomplished. It is no answer to the objec- 
 tion to say that if through no fault of his own 
 the carrier cannot comply with the nsage, 
 he may then prove delivery of the property 
 in some other manner. This does not relievo 
 the difficulty, because in the contingency 
 supposed he would be obliged to show the 
 existence of facts sufficient to excuse a non- 
 compliance with the usage before he could 
 be allowed to prove by the ordinary legal 
 evidence that he had fulfilled his contract. 
 No usage to which such a consequence at- 
 taches can be deemed to be consistent with 
 the principle that no unusual or dispropor- 
 tionate duty or burden can be thrown on 
 one of the parties to a contract by local 
 usage or custom." Reed v. Richardson, 98 
 Mass. 2U. 
 
 s Emery v. Dunbar, 1 Daly, 408. 
 
 6 Kohn V. Packard, 3 La. 224; 23 Am. Deo. 
 483. 
 
 ~ Clark V. Gifford, 7 La. 524. 
 
 » Harding v. The Maverick, 5 Law Rep. 
 106; The Maverick, 1 Sprague, 23. 
 
 " " It nullifies the contract and subverts 
 the very objects for which it was entered 
 into — the carrying of the plaintiits' goods 
 and the beneficial employment of the de- 
 fendant's vessel. A contract which is ab- 
 
72 ON THE REQUISITJiS TO THEIR VALIJDITY. 
 
 Unrjasonable Usages. 
 
 losses to be made at the time the goods are delivered,^ or within ten days there- 
 after; ''■ a custom of a railroad company that before a consignee can obtain Jjis 
 wheat from the company's bins, he must receipt for the quantity; ' a custom of 
 a railroad company not to be responsible for the conduct of its agents in re,:;ard 
 to the contents of chartered cars, of which they hold the keys ; * a usage of a 
 steamboat company not to allow a passenger to take to his state-room such 
 baggage as he may require for his personal use.* And " no custom, if it were 
 possible for such a custom to grow up, could be upheld as reasonable which 
 would justify a steamboat carrier who had goods consigned to a person at a 
 particular landing on the river, — where there was a warehouse and a TW,rehouse- 
 keeper, who usually received and took care of goods landed there for the con- 
 signee, — in putting out such goods on the river bank, without any protection, 
 when the landing had in the meantime been broken up by an inundation, and 
 the washing away of the buildings and the removal of the persons that consti- 
 tuted it a landing." " In Dixon v. Dunham,'' the Supreme Court of Illinois gave 
 illustrations of usages of this character, reasonable and unreasonable, respec- 
 tively: "A custom," It is said, "must be reasonable in view of the circum- 
 stances. For instance, a vessel having a single package for a consignee in the 
 port of Chicago, it might be very unreasonable to require the vessel to remove 
 from her usual dock where she is accustomed to land and discharge her freight, 
 and a custom absolving her from such duty might very readily acquire stability 
 among all parties ; whereas, were she loaded with an entire cargo for one con- 
 signee, — as timber, or pig or railroad iron, — it might be very unreasonable for 
 the captain to claim the right to deliver the cargo at a distance from the wharf 
 of the consignee, where he would not only be compelled to have it reshipped or 
 transported by land, but also to pay wharfage; and a custom which would 
 secure that privilege to a carrier would be likely to meet vrith opposition, if not 
 with continued resistance. * * * Customs are instituted and admitted to pro- 
 mote the interests and convenience of trade, under the supposition that the slight 
 inconvenience which one class suffers by reason of them is more than counter- 
 solute in terms it mates conditional; an law." Diokerson, J., in Randall ». Smith, 63 
 obligation expressly enjoined upon both Me. 105. 
 
 parties it malies optional with either. Under i Memphis R. Co. i;. HoUoway, * Law & 
 
 its application the defendant cannot reckon Eq. Rep. 425. 
 
 with any confidence upon employment lor 2 Browning v. Long Island R. Co., 3 Daly, 
 
 his vessel, or the plaintiffs upon the receipt 117. 
 
 of their goods, though they have mutually s christian v. St. Paul, etc., R. Co., 20 
 
 entered into a valid contract to secure both IVIinn. 21. 
 
 these objects. Instead of subserving the < " The custom, if it exists, is a most 
 
 purposes of the parties, as disclosed in their unreasonable one. To hold a key and yet 
 contract, it dominates over and controls not be accountable for what is taken out of 
 them; in fine, it makes the contract sub- a car, would be contrary to all sense of 
 ordinate to the usage, and the legal rights right." Jackson, J., in Central R. Co. v. 
 of either party to hinge upon the con- Anderson, 5S Ga. 393. But a custom to give 
 ven.ence or caprice of the other. It is preference to the delivery of perishable 
 dilHcult to understand how such a practice property over other freight is reasonable, 
 could ever have assumed the proportions Peet v. Chicago, etc., R. Co , 20 Wis 594 
 necessary to give it the cognomen of a com- r. Macklin v. New Jersey Steamboat Co., 
 
 mercial usage in a commercial community. 7 Abb. Pr. (n. s.) 229. 
 It is less difficult, however, to understand « Stone v. Rice, 58 Ala. 95 
 
 that it could never have the sanction of ' u 111. 324. 
 
UNREASONABLE USAGES. 
 
 73 
 
 Insurance — Master and Servant. 
 
 balanced by the benefits to another class, and that the Inducements thus offered 
 compensate the lesser loss by the reduced charges which are thereby induced." 
 
 § 41 . Same — Insurance. — In the law of insurance, these have been held 
 unreasonable, viz. ; A usage of marine companies to require a survey of the 
 goods damaged by the port-wardens, as a preliminary proof of the loss ; • and a 
 usage of the same class of insurers to pay only two-thirds of the gross freight 
 on a total loss.' 
 
 §42. Same — Master and Servant — Employer and Employee. — The fol- 
 lowing customs have also been held unreasonable : A custom that if a female 
 slave, hired by the month or week, should be confined and delivered of a child 
 during the term, the owner should pay a certain sum to the hirer ; ' a custom 
 among wholesale dealers allowing their salesmen pay for time lost by sickness, 
 without regard to the length ; * a custom for sawyers to ship the lumber in- 
 trusted to them, and converted into logs, to lumber factors, to be sold by them ; ' 
 a custom that a person employed to cut staves from another's bolts has a right 
 to take to his own use the clippings, comer-pieces, and culls, without the con- 
 sent of the owner;* a usage of plasterers to charge not only for the space 
 covered, but for one-half of the surface occupied by openings.' 
 
 ' Rankin v. American Ins. Co., 1 Hall, 619. 
 
 = McGregor v. Insurance Co., 1 Wash. 0. 
 Ct. 39. 
 
 ' Oooper V. Purvis, 1 Jones L. 141. 
 
 * Sweet V. Leach, 6 Bradw. 212. 
 
 ' " The custom thus set up is clearly had, 
 and forms no justification lor the acts al- 
 leged to have been done under its author- 
 ity. A custom that those who have a lien 
 lor work may sell the property on which it 
 rests, after a demand ol the debt and a rea- 
 sonable notice of the time and place of sale, 
 might perhaps be good, although I certainly 
 do not undertake to say that it would be so ; 
 but a custom under which no man in Ly- 
 coming could send his logs to a saw- mill 
 without the risk of having them sent for 
 sale to a distance, without consulting his 
 wishes or giving him an opportunity to pay 
 what he owed and resume possession of the 
 property, is too clearly vicious to justify the 
 consumption ol time in pointing out the 
 many particulars in which it sins against 
 reason as well as common right and jus- 
 tice." Hare, J., in Bean v. Bolton, 3 Phila. 87. 
 
 ° "As a custom, it cannot be upheld. 
 Customs must be reasonable, and not con- 
 trary to the general principles of law. A 
 custom which is unreasonable and in oppo- 
 sition to the general principles ol law is 
 void. » * * The propertyin the culls and 
 corner-pieces was vested In the defendant. 
 They were of value, as appears by the plain- 
 tiffs' own showing, and were an article ol 
 
 merchandise. The defendant might have 
 parted with them by contract. Perhaps a 
 license to take them might be inferred from 
 their having been suffered to remain un- 
 claimed for a suffiaiont length ol time in the 
 plaintiffs' mill-yard. But a custom for the 
 cutter to take and appropriate them to his 
 own use, without the .agreement or consent 
 of the owner, cannot be sustained. Such a 
 custom is not only not in harmony with law, 
 but manifestly against public policy. To 
 allow a mechanic or artisan who works up 
 the materials of another to keep so much ol 
 such material as is not used for the benefit 
 of the owner of the material is to array 
 his interests in direct opposition to those of 
 his employer. This is strongly illustrated 
 in the case of the culls. It appears that in 
 this instance the plaintiffs and their em- 
 ployees culled the defendant's bolts, and 
 such we understand from the evidence to 
 be the general practice. II the culler is to 
 be entitled to all the bolts which are deter- 
 mined by him to be unlit for staves, he is 
 under a very direct temptation to cull in a 
 careless, not to say fraudulent manner, so as 
 to increase his own profit at the sacrifice ol 
 the interest ol his employer. Such a custom, 
 as a custom binding upon the owner of the 
 property, is unreasonably contrary to public 
 policy, and cannot have the sanction ol 
 law." Talcott, J., in Wadley v. Davis, 6S 
 Barb. 500. 
 
 ' " The pretended usage ol the plasterers 
 
74 
 
 ON THE KEQUISIXES TO THEIE VALIDITY. 
 
 Unreasonable Usages. 
 
 § 43. Same — Public Officers. — Likewise, these customs are adjudged unrea^ 
 sonable, viz. : A custom for a flour inspector, who, by statute, is to receive a 
 specified compensation in money, to take to his own use the flour drawn from 
 the barrel in the process of inspection, called the " draught flour," as an addition- 
 al compensation or perquisite ; ' a usage of government officers to accept bills 
 without consideration, or to pledge the credit of the nation as surety for, or the 
 accommodation of a contractor; ^ a custom for holders of settlements and pre- 
 emptions of land to give one-half to another for surveying, obtaining preemp- 
 tion-warrants, and paying all expenses for carrying the claims to a grant;' a 
 custom, in making surveys for locations of government land granted to a settler, 
 to include more land than the warrant actually called for.* 
 
 in the present instance is unreasonable and 
 bad in itself. To charge an employer with 
 materials never received, ia the height ot 
 injustice." Jordan v. Meredith, 3 Yeates, 
 318. But see Walla v. Bailey, 49 N. T. 464. 
 
 ' " Sucli a custom, when invoked for the 
 benefit of a public functionary by transfer- 
 ring to him a portion of the goods of the 
 citizen, with which he is called upon to 
 deal in the discharge of his office, by way 
 of additional compensation or perquisite, 
 over and above what the law expressly pro- 
 vides, would be bad, as being unreasonable, 
 unljust, and contrary to the policy of our 
 la^va. It would beunjastand unreasonable 
 tUat a public officer, having a specified duty 
 to perform in relation to the property of 
 others for a prescribed fee, should by the 
 discharge of that duty acquire a right not 
 only to the fee allowed, but also to a part of 
 the property itself. It thus makes him the 
 sole judge of the compensation which he 
 shall receive. There ia not even the pre- 
 tence of a contract, which might be said to 
 be made with reference to the custom. The 
 manufacturer who designs his flour for ship- 
 ment has no choice in regard to the inspec- 
 tion. He is required by law to have such 
 flour inspected, and is subject to a heavy 
 penalty if he shall export or ship it without 
 such inspection. He pays the fee because 
 required by law to do so, but in no sense 
 does he stand in the relation of a contracting 
 party to the inspector. * * * It is but a 
 petitio prindpii to say that the inspector may 
 appropriate the draught fiour to his own use 
 because he may destroy it or throw it away. 
 If it be conceded that to inspect means 
 more than to make mere ocular examina- 
 tions, and that the inspector is authorized 
 to bake a portion of the flour into bread, 
 or subject it to a chemical test, still that 
 would not authorize him to take away any 
 more than is necessary for that purpose, nor 
 even that for his own use and benefit. Tak- 
 
 ing away the draught flour Is no part of the 
 inspection, for that may be made whether 
 the inspector appropriates it to himself or 
 restores it to the owner. The practice of 
 millers to take toll for grinding gives no 
 countenance to this custom. The cases are 
 in no respect parallel. The shipper of fiour 
 has no option; he must have his flour in- 
 spected and pay the fees, without anything 
 in the nature of a contract between himself 
 and the inspector. The owner of grain may 
 or may not have it ground, at his pleasure; 
 and if he does, it is a matter of contract 
 between himself and the miller that the toll 
 is yielded. They may .agree that the com- 
 pensation for grinding shall be in money, or 
 other thing instead. Nor is there any real 
 force in the suggestion, however plausible it 
 may seem, that the inspector may keep the 
 draught flour for the purpose of vindicating 
 his judgment if he should be sued for afalse 
 brand. It is impossible to believe that such 
 a motive could have been the origin of this 
 custom. No case, I apprehend, has ever 
 occurred in which such an instrument of 
 evidence has been resorted to, nor is it at all 
 likely that ever the flour drawn by an 
 inspector was retained for any such pur- 
 pose. In point of fact, the practice has been 
 universal for the inspectors to mix the flour 
 thus drawn in a common bulk, and to sell or 
 otherwise dispose of it. And, moreover, the 
 gist of any action against an inspector for a 
 false brand would be the honesty, and not 
 the absolute correctness of the judgment 
 which he had pronounced." Lee, J., in 
 Dela|>lane v. Crensliaw, 15 Gratt. 456. 
 
 » Pierce v. United States, 1 Ct. of 01. 290. 
 
 8 Carri). Oallaghan,3 Litt. 373; Watkins v. 
 Eastin, I A. K. Marsh. 402; Bodley v. Craig, 
 I B. Mou. 77. 
 
 * " Is this pretended custom reasonable? 
 If it be reasonable that a man to whom the 
 government makes a donation of one thou- 
 sand acres ot land, and suffers him tu locate 
 
UJSEEASOKAJLE USAGES. 
 
 75 
 
 Principal and Agent. 
 
 § H. Same — Principal and Agent. — Many usages affecting the relation of 
 principal and agent have been declared void for unreasonableness — as, for 
 example, a custom that a man, without any authority from the owner of lands, 
 and without his consent or knowledge, and without knowing whether he wishes 
 to sell or not, may dispose of them on the ordinary terms, and by so doing bind 
 the owner; ' a usage among owners of vessels to accept all bills Of their masters 
 for supplies furnished abroad ; ' a custom that the master of a vessel, as such, 
 may purchase a cargo on account of the owners, without their authority,' or may 
 have the right to sell the vessels without authority from the owners ; * a usage 
 for a broker, employed to purchase stock, to buy the stock for himself, without 
 his principal's knowledge; * a custom that an agent may sell the property of his 
 principal before he is instructed to do so, and on demand of the property back, 
 may tender him similar articles in their stead; ^ a usage of agents, in collecting 
 drafts for absent parties, to surrender them to the drawees at maturity, and to 
 take in excha'hge their checks upon banks ; ' a usage of brokers of tanned skins 
 to insert in the memorandum of sale, unless forbidden by the vendor, and the 
 
 it himself, should. Instead of the one thon- 
 sand acres, appropriate to himself twelve 
 or fifteen hundred acres, then this pre- 
 tended custom is reasonable. But if by 
 such conduct he commits a fraud upon the 
 government and upon other individuals iu 
 the same situation as himself, it is unrea- 
 sonable, and ought not to be sanctioned." 
 Hitchcock, J., in Huston v. McArthur, 7 
 Ohio, 70. 
 
 1 Carr v. Callaghan, 3 Litt. 372. 
 
 - " That usage cannotbe reasonable which 
 puts at hazard the property of the owners at 
 the pleasure of the master, by making them 
 responsible, as acceptors, on bills drawn by 
 him, and which have been negotiated on the 
 assumption that the sums were needed for 
 supplies or repairs; and no evil can flow 
 from rejecting such a usage, because owners 
 who have confidence in the judgment and 
 discretion, as well as the integrity of their 
 ship-masters, can give them, at their pleas- 
 ure, a limited authority to draw, which will 
 furnish them with credit, and protect them 
 from imposition." Hubbard, J., in Bowen 
 ». Stoddard, 10 Mete. 375. 
 
 » "If the owners have permitted the mas- 
 ter to purchase on their account, or have 
 ratified such acts when they became known 
 to them, they would by such a course of 
 dealing hold him out as their agent, author- 
 izedto purchase, and they would bebound by 
 his acts. But the shopkeepers in a village 
 might as well undertake to set up a usage to 
 trust every man's servant to contract debts 
 for his master without authority, as the 
 dealers in lime, or any other article, in a 
 particular place, a usage to sell to masters 
 of vessels without authority from the own- 
 
 ers, and thereby bind them." Shepley, J. 
 in Hewett v. Buck, 17 Me. 147. 
 
 4 " That masters should have right, merely 
 as masters, to sell the property of their 
 owners in the vessels they command, with- 
 out authority from their owners, would be 
 most unjust and impolitic; and any prac- 
 tices of that kind ought to be repudiated 
 as iniquitous aud absurd, rather than to be 
 improved as precedents to establish a rule." 
 Henshaw v. Clark, 2 Root, lOt. 
 
 5 Pickering v. Demerritt, 100 Mass. 421. 
 
 « " The custom alleged, if it existed, would 
 be contrary to law and good morals, and 
 could not be recognized by a court of justice. 
 Under it the principal, in case of his agent's 
 failure, could no longer identify his prop- 
 erty, and his right to take it back in kind 
 would in every case be defeated. After the 
 sale by the factor of the property of his 
 principal, in violation of orders, his interest 
 becomes adverse to that of his employer. 
 Having to return the property in kind, he 
 has an interest in the fall of the market, and 
 is subjected to the temptation of assisting to 
 bring it about, in direct opposition of his 
 duty to the principal who employs him." 
 Eost, J., iu Foley v. Bell, 6 La. An. 760. 
 
 '' "It is undoubtedly true that men who 
 keep bank accounts are accustomed to give 
 checks for their debts, and iu most cases 
 their standing is such that these checks are 
 taken by their neighbors as readily as cash. 
 This may make a common practice among 
 men who are dealing on their own account 
 in respect to such dealings; but such a 
 practice falls short of a usage applying to 
 the collection of drafts for absent parties. 
 And it is not a reasonable usage that one 
 
76 
 
 ON THJK REQUISITES TO THEIR VALIDITY. 
 
 Unreasonable Usages. 
 
 buyer has an opportunity for examination, a warranty of merchantable quality 
 a custom of public warehouse-keepers in London to have a general lien upon all 
 goods from time to time stored in their warehouses for and in the name of the 
 merchants or other persons by whom such public warehousemen are retained or 
 employed, for all moneys, or any balance thereof, due from such merchants or 
 other persons to such warehousemen for or on account of advances or expenses 
 which such warehousemen should have made, or been put to, in or about the 
 payment of duties or of customs on goods consigned to them from abroad, or 
 the payment of freight or other charges for the conveyance of such goods to the 
 port of London, or the entering, landing, and warehousing such goods ; '' a 
 custom that a person employed by a company to devote his time to its business, 
 for its exclusive profit, should be allowed to engage in a similar business on his 
 own account;" a custom for ship-brokers to receive a commission from the 
 seller of a vessel when they introduce the purchaser to him, and are not otherwise 
 employed in the transaction ; * a custom for an agent to receive compensation 
 from both buyer and seller; > a custom under which an insurance agent receives 
 from the company commissions on the renewal premiums on all policies obtained 
 
 who collects a draft for an absent party 
 should be allowed to give it up to the 
 drawee, and sacrifice the claim which the 
 owner may have on prioi- parties, upon the 
 mere receipt of a check, which may turn 
 out to be worthless." Chapman, C. J., in 
 Whitney v. Esson, 99 Mass. 308. 
 
 ' " By the terms of the usage, the authority 
 of the broker to give a warranty is implied, 
 wholly irrespective of the nature and condi- 
 tion of the particular property which may 
 be the subject of the contract, without any 
 regard to the facts and circumstances under 
 which the sale is authorized to be made. 
 H this usage is upheld, then a broker may 
 give "• warranty binding on his principal, 
 although the latter may have authorized 
 goods to be sold, not for a sound price, but 
 at a rate far below the market value of a 
 merchantable article; so, he may be held 
 liable on his broker's warranty although at 
 the time of the sale he may never have seen 
 the goods, and knew nothing of their condi- 
 tion or value, or even when he knew that 
 they were of an inferior article, or had been 
 greatly damaged; and this, too, where the 
 vendee may have seen and examined the 
 article, and had full opportunity to become 
 acquainted with its quality and condition. 
 The dangerous consequences which would 
 follow if such usages were permitted to 
 interfere with the operation ot established 
 legal principles, and to control the rights 
 and obligations of parties under contracts, 
 are too plain and palpable to allow us to 
 hesitate in rejecting them as unreasonable 
 
 and invalid." Bigelow, C. J., in Dodd v, 
 Farlow, 11 Allen, 426. 
 
 2 '• The general lien claimed is not con- 
 fined to goods the property of the person 
 who employed or retained the warehouse- 
 keeper, but extends to all goods which are 
 put by him, in his own name, into the hands 
 of a warehouse-keeper, whether his prop- 
 erty or not. The custom set up in the plea, 
 if supportable, would make the goods of a 
 foreign merchant which have been con- 
 signed by him to a London factor for sale, 
 and by him put into the warehouse of the 
 warehouse -keeper for safe custody, liable 
 to a private debt of the factor for expenses 
 incurrcJ in respect of other goods of third 
 persons, which had been in his hands at 
 former times, for charges contracted upon 
 such goods during any antecedent period 
 of time, and that to an unlimited extent. 
 It appears to us that such a custom is at 
 once unreasonable and unjust, and there- 
 fore bad in law. It is a custom which is 
 obviously prejudicial in a direct manner and 
 in a very high degree to foreign trade ; for 
 no foreign merchant would be content to 
 consign his goods to this country for sale 
 if they could be made liable, whilst ware- 
 housed for the purpose of custody, to satisfy 
 a debt already due from the factor in respect 
 of other goods." Tindal, C. J., in Leuckart 
 ti. Cooper, 3 Scott, 621 (overruling dictum in 
 Leuckart v. Cooper, 7 Car. & P. 119). 
 
 ' Stoney v. Farmers' Transp. Co., 17 Hun, 
 583. 
 
 * Winsor v. Dillaway, i Mete. 221. 
 
 ' See notes to Raisin v. Clark.post, Chap.V. 
 
UNREASONABLE USAGES. 
 
 77 
 
 Illustrations. 
 
 by Wm for three years after the termination of his engagement ; ' a custom 
 entitling a wharfinger to deliver.goods, with credit for the freight, without incur- 
 ring any responsibility, and entitling him to be regarded as still continuing the 
 forwarder's agent to receive the amount.^ 
 
 §45. Same — Miscellaneous. — Various other usages have been adjudged 
 invalid by the courts on account of their unreasonableness, as follows : A cus- 
 tom to use and imitate the trade-marks of foreigners with impunity; * a custom 
 of publishers of newspapers to insert advertisements sent to them without 
 express directions as to the number of insertions, until their publication is ex- 
 pressly countermanded, even after the object of the advertisement has ceased, 
 and that fact is apparent on its face ; • a custom to mine coal without leaving 
 pillars or posts to support the surface; ^ a custom on the Connecticut River that 
 when any person clears a place for seine-flshing, he holds it against the worlji 
 during the fishing-season ; » a custom of the owners of mines to dispose of water 
 pumped therefrom, by allowing it to flow into the adjacent natural water- 
 courses, even though it polluted the streams of adjoining proprietors ; ' a cus- 
 tom that the outgoing tenant of a farm shall look exclusively to the incoming 
 tenant, when there is one, and not to the landlord, for compensation for seeds, 
 acts of husbandry, tillage, etc' 
 
 1 "The cnstom does not appear to be 
 reasonable. We would scarcely suppose 
 that such power over the funds of the com- 
 pany would be left, for a period of three 
 years after the termination of the agency, in 
 the hands of one who, at the time, would not 
 be under bond." Hines, J., in Castleman v. 
 Southern Mutual Ins. Co., li Bush, 197. 
 
 2 " I question whether any such custom 
 could be recognized-in law." Macaulay, C. 
 J., in Torrance v. Hayes, 2 Upper Canada C. 
 P. 338. 
 
 '■> Taylor v. Carpenter, 2 Woodb. & M. 1. 
 
 < Thomas v. Graves, 1 Mill Const. 308. 
 
 s Coleman v. Chadwick, 80 Pa. St. 81. And 
 see Jones v. Wagner, 66 Pa. St. 430; Homer 
 V. Watson, 79 Pa. St. 243. 
 
 = Freary v. Cooke, 14 Mass. 488. And see 
 Lufkin V. Haskell, 3 Pick. 356. 
 
 ' A coal company had pumped from its 
 mines a quantity of water which polluted a 
 previously pure stream of the plaintiff, 
 into which it found its way. In an action 
 therefor it was contended by the defendant 
 that the customary mode of disposing of 
 water pumped from the mines in that region 
 had always been to allow it to flow into the 
 adjacent natural watercourses; and ]>roof 
 of such a custom was offered. Said Gordon, 
 J. : " More fatal still to the defendant's pre- 
 tensions is the fact that the elFort is thus to 
 Justify the disturbance of private property 
 for the advancement of the private interests 
 of the defendant corporation; and that not 
 
 under the plea of an ancient cnstomary use, 
 arising before the plaintiff acquired title, but 
 of a general custom which would authorize 
 the present injury or destruction of the 
 rights of riparian owners. But a custom 
 such as this would not only be unreason- 
 able, but also unlawful, and therefore worth- 
 less. It is urged that mining cannot be car- 
 ried on without this outflow of aciduous 
 water, hence of neoessity the neighboring 
 streams must be polluted. This is true ; and 
 it is also true that coal- mining would come 
 to nothing without roads upon which to 
 transport the coal after it is mined; there- 
 fore roads are necessary; but it does not fol- 
 low that for such purpose the land of an 
 adjacent owner may be taken, or his right of 
 way encumbered, without compensation." 
 Pennsylvania Coal Co. i;. Sanderson (Sup. 
 Ct. Pa., May, 1880). 
 
 ' " The custom here found to exist, in point 
 of fact, is to the efiect that the incoming 
 tenant, if there be one, is the only person 
 liable to compensate the outgoing tenant; 
 the custom as found exempts the landlord 
 from liability altogether. Such a custom 
 will be found, on examination, to involve the 
 following consequences: 1. That the out- 
 going tenant has imposed upon him, for 
 his sole and exclusive debtor, a person in 
 whose selection he has no choice, and with 
 whom he has made no contract at all. 
 2. That the incoming tenant has to make 
 compensation to the outgoing tenant irre- 
 
78 
 
 ON THE REQUISITES TO THEIR VALIDITY. 
 
 The Habit of an Individual. 
 
 § 46. The Ciistom ol a, particular Person or the Habit of an IncUvld\ial. — 
 We come now to the third and last of the particular customs which are the sub- 
 ject of this treatise, viz. : the custom of a particular person or the habit of an 
 individual. If the memory of a witness is defective concerning an act which it 
 Is of importance to prove as having occurred at a particular time, or under cer- 
 tain circumstances, it would seem that his custom to do that act at the time or 
 under the circumstances alleged should be of weight in raising an inference that 
 the act was then performed, and evidence of the habit ought therefore to be 
 allowed. In the progress of a trial, for example, it is desired to prove that A., 
 at eleven o'clock on the night of January I, 1880, was in bed. A. cannot swear 
 positively that he was in bed at that hour on that particular night ; but A. Is a man 
 of correct and methodical habits, and he is willing to swear that it has been his 
 universal custom, to which he cannot recollect an exception, to retire at ten 
 p. M. It is obvious that this would tend to satisfy the ordinary mind that A. was 
 in bed at the hour named. Therefore, it Is apprehended that such testimony 
 would not be rejected by the courts ; it has been spoken of in one case as " per- 
 suasive and legitimate supporting evidence." In Schoneman v. Fegley,'^ decided 
 by the Supreme Court of Pennsylvania in 1850, a witness testified that he 
 
 spective at the purpoees for which he (the 
 incoming tenant) may work the land, and 
 whatever the terms between him and his 
 landlord may be, and whether the incoming 
 tenant takes the land for a week, a month, a 
 year, or a long term. 3. That the outgoing 
 tenant can make no arrangement with his 
 landlord as to his valuation, unless the In- 
 coming tenant is a pai'ty to it and assents to 
 it. 4. That in the event of a letting and 
 undertaking, It is (on the custom as stated) 
 uncertain who is to pay, viz., the immedi- 
 ate lessee fi'om the landlord or the ultimate 
 tenant who takes possession. 5. That such 
 a custom would lead any prudent tenant to 
 run his farm out as much as by law he 
 could, and to leave as little as possible for 
 the incoming tenant to pay for. A custom 
 having such consequences as these appears 
 to us so unreasonable, uncertain, and preju- 
 dicial to the interests both of the landlords 
 and tenants as to be incapable of being sup- 
 ported in point of law. The argument that 
 it is to the interest of the landlord to secure 
 a solvent tenant, and that consequently the 
 outgoing tenant runs practically little or 
 no risk, does not meet all the grounds of 
 unreasonableness above pointed out. In- 
 deed, it does not adequately meet any of 
 them; for it would be to the interest of an 
 unscrupulous landlord to put in an insolvent 
 man as tenant for a short time, so as to avoid 
 having to pay the outgoing tenant himself, 
 and yet to obtain possession before the pov- 
 erty of the new tenant could be productive 
 pf injury. The rensonableuess or unreason- 
 
 ableness of a custom is a question of law 
 for the court (see Tyson v. Smith, 9 Ad. 
 & E. i21), and not a question of fact for 
 the juiy; and the principles applicable to 
 such questions will be found in Comyns' 
 Digest, tit. ' Copyhold,' S, and Tyson «. 
 Smith, ubi supra^ and on these principles we 
 proceed. It may, indeed, be said that the 
 custom here condemned is that which pre- 
 vails in practice all over England, it being 
 well known that, as a matter of fact, 
 the outgoing and incoming tenants usually 
 settle questions of valuation between them* 
 selves, without referring to the landlord. 
 This is no doubt true ; but if the practice is 
 examined, it will be found to be based en- 
 tirely on the principle that the landlord is 
 liable by custom to the outgoing tenant, and 
 that the incoming tenant is not liable to the 
 outgoing tenant where there is no contract, 
 express or tacit, between them. See Faviell 
 V. Gascoigne, 7 Exch. 273 ; Stafford v. Gard- 
 ner, L. R. 7 0. P. 242; Codd v. Brown, 15 L. 
 T. (sr. s.) 536. The custom here found to 
 exist is totally different; it exonerates the 
 landlord from all liability, and imposes a 
 liability on the incoming tenant to the out- 
 going tenant, even In the absence of any 
 contract, express or tacit, between them. 
 There is no inconsistency, therefore, in 
 condemning the custom and upholding the 
 practice, which is based upon a custom 
 wholly opposed to that with which we have 
 to deal." Iiindley, J., in Bradburn v. Foley,. 
 17 Alb. li. J. 483. 
 1 14 Pa. St. 376. 
 
PARTICULAR CUSTOMS. 7.9 
 
 The Habit of an Individual. 
 
 did not know whether he had given a receipt for the amount of a note received 
 by him. He was then aslted, " Did you not usually give receipts for notes 
 received ? " The trial judge refused to allow the question, and the case was 
 appealed. In the Supreme Court, however, the admissibility of the evidence was 
 not discussed, the court remarking that if an error had been committed, it had 
 been cured by a concession made at the trial. In 1867, however, in the case of 
 Eureka Insurance Company v. Bohinson,^ the matter came directly before the 
 same court, and was decided in the affirmative. The question was, whether 
 notice of an additional insurance had been given. The witness called to prove 
 the giving of the notice could not say whether he had done so in that case, add- 
 ing, " It was my custom to do so, to avert any further trouble." He was then 
 asked "whetherit was his custom to do so in a case like the present, viz., where 
 he had effected an insurance in one office, and subsequently a new or additional 
 risk In another." The trial court allowed the evidence. On appeal, its ruling 
 was affirmed. Strong, J., refei-ring to Schoneman v. Fegley, said : " It is evident 
 that the matter was regarded of no importance, as in truth it was in that case. 
 No reasons were given for Judge Bell's remark, and no authority in support of 
 it was cited," adding: "We think it not uncommon in practice to corroborate 
 the defective memory of a witness by proof of what was his habit in similar cir- 
 cumstances. Thus, a subscribing witness to a will or a bond, if unable to recol- 
 lect whether he saw the testator or obligor, sign the instrument, or heard it 
 acknowledged, is often perinittcd to testify to his own habit never to sign as a 
 witness without seeing the party sign whose signature he attests, or hearing that 
 signature acknowledged, and it seems to be persuasive and legitimate support- 
 ing evidence." 
 
 But where evidence of this character is offered, not to prove a fact, but to 
 corroborate it, there can hardly be any objection to its admissibility. In Bine 
 V. Pomeroy," the question was whether C, the attorney for the plaintiff iu a 
 former suit, had directed T., an officer to whom C. gave a writ for service, to 
 take the receipt of M., and not remove the property. T. testified that such 
 directions were given ; C, that they were not. It was then proposed to show by 
 C. that his uniform habit as an attorney, in delivering writs of attachment to 
 officers for service, was not to give instructions to them to take receipts, but to 
 abstain from giving any instructions in regard thereto. The trial court refused 
 the evidence, but in the Supreme Court the ruling was reversed. " There was a 
 conflict," said Barrett, J., " between C. and T.: C. testifying that he did not, 
 against T. testifying that he did. In such cases it is commonly claimed that the 
 testimony of him who testifies affirmatively, that an act was done or an event 
 happened (other things being equal), is less likely to be erroneous, and is more 
 reliable than the testimony of him who testified that such act was not done or 
 such an event did not happen. Ordinarily it is said, and justly, that he who 
 testifies to the negative may have forgotten a fact that actually took place, while 
 he who testifies affirmatively cannot remember a fact that never did take place ; 
 and so, upon common principle affecting or governing the credit and weight to 
 be given to testimony thus in conflict, it should rather be held that the one had 
 forgotten than that the other had testified falsely. It seems proper .is rrounded 
 in sound principle and sanctioned by long usage, that such affin>,< ve -acts and 
 
 1 56 Pa. St. 256. s 39 y(,_ jn. 
 
80 ON THE KEQUISITiflS TO THEIR VALIDITY. 
 
 The Habit of an Individual. 
 
 circumstances as are connected with or kindred to the fact in controversy, and 
 so related to it as to affect the conduct or the memory of the witness as to the 
 main fact, may be testified to by him as bearing upon the likelihood of his not 
 having forgotten nor testified mistakenly as to the main fact. It is conceded, 
 and many cases are cited, which show that evidence of the character offered in 
 this case only as corroborative has been received as pertinent and adequate of 
 itself to prove a material fact — as, in the case of subscribing witnesses who have 
 forgotten about having witnessed the execution of a paper in question; as in the 
 - case of notices of presentment, protest, and the like, when the witness has no 
 recollection of the fact, but testifies to Ms uniform habit and course of business 
 in that respect, and to his belief grounded upon it, and thus proves the mate- 
 rial fact about which he has no active memory. If such testimony is proper 
 and adequate to prove a material fact, it would seem strange it it should be held 
 not proper, as corroborative of the correctness of the witness who swears by 
 his memory, as to the main and material fact." When the case went back for 
 another trial, the evidence of C. as to his practice was admitted without objec- 
 tion, and the defendants then offered to show that it was the practice of the 
 attorneys of the place, other than C, to give such instructions to officers. The 
 trial court rejected this evidence, and this time the ruling was affirmed in the 
 Supreme Court.' In a North Carolina case, as bearing upon the question 
 whether a. railroad company had received certain cotton for transportation, and 
 as confirmatory of the statement of the agent that they had not, the company 
 asked the agent whether it was not the custom to weigh and mark goods as they 
 were taken for transportation, — the cotton in question not having been weighed 
 and marked, — but the court ruled out the question. On appeal, this was held 
 error.2 Where the question is whether a usage exists in a city to inspect a cer- 
 tain kind of provisions, evidence that the rules of a chamber of commerce, 
 having the power given to it by its act of incorporation to appoint an inspector 
 of provisions, and one of the purposes of which was declared to be to " estab- 
 lish and maintain uniformity in the commercial usages of the city," said 
 nothing about the kind of provisions in question, while they provided for the 
 inspection of many other kinds, is admissible to show the non-existence of the 
 usage.s In an action against a bank for the amount of a deposit alleged to have 
 been made with the bank on a certain day by the plaintiff, the bank defended on 
 the ground that no deposit was made by him on that day. The cashier swore 
 that no deposit was made by the plaintiff on that day, and was then permitted 
 to add: " It is the universal custom of the bank to balance and settle the books 
 every evening. There was no transaction of the kind. * * * If he (the 
 plaintiff) had made a deposit on that day, I would have entered the deposit in 
 the daily receipts ; and this is one reason for my belief that he made no such 
 deposit." This evidence was held proper.* Where, in a suit for the loss by fire 
 of a quantity of rice deposited at a mill to be ground, it was proved that the 
 general custom of the mill was to give a receipt to the owner of the rice deliv 
 ered, stating the quantity and the terms of deposit, it was held that the pre- 
 sumption was that the receipt was so delivered, and that the plaintiff could not 
 
 > Hlne V. Pomeroy. 40 Vt. 103. a Kershaw v. Wright. UB Mass. 361. 
 
 J Vaughn o. Ealelgh, etc., B. Co., 63 N. 0. * Meighen v. Bank, 25 Pa. St. 288. 
 
PAETICDLAR CUSTOMS. 81 
 
 The Habit of an Individual. 
 
 resort to proof of the quantity aliunde without proof of his inability to produce 
 It.i So, where a parol acceptance of a draft was relied upon, evidence that it 
 was the custom of the party in accepting drafts to always do so in writing, and 
 to enter them on his books, was admitted.^ Evidence that it was the practice of 
 a bank clerk to carry notices personally to parties, is admissible to prove that it 
 was done in a particular case ; » and the question being as to whether a notice 
 has been mailed by a notary, his habit of doing so is relevant.* Abbreviations 
 and symbols in a party's books of account may be explained by evidence of 
 his usage, but not by his secret intent.^ 
 
 § 47. Cases where this Proof viras rejected. — It was disputed between a 
 party and an insurance agent whether a contract of insurance was entered Into 
 between them. To corroborate the testimony of the agent, and as tending to 
 show that there was no agreement for insurance completed, the company offered 
 In evidence a book kept by the agent for them, in which he entered all risks 
 taken by Mm for the company as soon as taken, but in which the risk claimed 
 did not appear. But it was held not admissible. "No authority," said the 
 court, "Is cited in support of the proposition that the omission to make an 
 entry of a contract in a book kept by one party is evidence in favor of that 
 party that no contract was made. Such an entry constituted no part of the 
 contract, and the plaintiff had no knowledge of the habit of the defendant's 
 agent in that respect, and could not be affected by it. It was clearly inadmis- 
 sible." ' And in a somewhat similar case, evidence that a factor was in the habit 
 of making entries in his books designating what sales were guaranteed and 
 what not, was not competent to prove that he did not guarantee all sales made by 
 him; ' and the question being whether a bill of sale had been read over to a 
 woman by a justice of the peace, that such was his habit was held irrelevant.* 
 In an action of trespass, it was proved that an execution against the plaintiff 
 was delivered to the defendant, but it did not appear that he was the person who 
 made the attachment for which the action was brought. The plaintiff, in order 
 to establish the identity, gave evidence of a custom to deliver executions to the 
 officer making the attachment; and the jury were instructed that if, from this 
 usage, they, were satisfied that the defendant made the attachment, they should 
 find for the plaintiff. But the Supreme Court said: "It appears to us that 
 there is no such uniformity in this custom or usage that it can be regarded as 
 evidence to show a particular and substantial fact. The custom of giving out 
 executions within thirty days after judgment is far more uniform than the one 
 alluded to, and we suppose that no one ever relied upon that kind of evidence 
 to charge property in execution. A witness who gave out an execution might 
 
 1 Ashe V. DeRosset, 8 Jones L. 240. 6 Curren v. Crawford, 4 Serg. & K. 3 • Bow- 
 
 2 Smith V. Clark, 12 Iowa, 32. land v. Barton, 2 Harr. (Del.) 288 : Cumtninffs 
 sShoves. Wiley, 18 Pick. 658. ». Nichols, 13 N. II. 420. 
 
 4 Trabue v. Sayre, 1 BaSh, 131; Union « Sanborn v. Firemen's Ins. Co., 16 Gray 
 
 Bank ». Stone, 50 Me. 595; Miller B. Hack- 448. • i. 
 
 ley, 5 Johns. 383; Shove v. Wiley, 18 Pick. ' Park i>. Miller, 27 N. J. L. 338. 
 
 561; Ooyle v. Gozzler, 2 Cranch C. Ct. 625; » Pocock v. Hendricks, 8 Gill & J 421 
 
 Cookendorfer v. Preston, 4 How. 317; Bell And see Goodf ellow «. Meegan, 32 Mo 280 
 V. Hagerstown Bank, 7 Gill 227. And see 
 Brailsford v. Williams, 16 Md. 160. 
 
82 ON THE REQUISITES TO THEIK VALIDITY. 
 
 Execution of Contracts. 
 
 rely upon his habit of giving them out in thirty days, and that if he had not in 
 the particular instance, it would have made an impression on his mind to enable 
 him to say he did give it out in thirty days ; but the jury could not with pro- 
 priety be allowed to consider this usage as showing the main fact. It is 
 common to attach property to satisfy the judgment ; but that, of itself, would 
 scarcely be sufficient to show an attachment in a particnlar case. The truth is, 
 this evidence is defective in two particulars : First, it rests upon no settled and 
 reliable uniformity, upon which the jury could safely be allowed to act; second, 
 it presupposes the existence of other evidence, and in the power of the party, 
 which not being produced, ordinarily raises a presumption against the party 
 that if produced it would operate against him." ' 
 
 § 48. Custom does not make a particular Mode of executingr a Contract 
 essential. — Because parties usually execute a contract in one way, a contract 
 executed in another way Is not necessarily invalid, if no particular requirements 
 are provided for by statutory enactment. Thus, contracts of insurance are usu- 
 ally written, and generally under seal, and this custom had become so general 
 that even Mr. Duer expressed doubt as to the validity of an oral insurance, the 
 usage of a written contract having so long and universally prevailed ; and his 
 doubts were shared by Chief Justice Tilshman.^ But when an oral contract of 
 this character was at last presented to the courts, it was ruled that its validity 
 could not be questioned on the simple ground that people usually made it in 
 another way.' 
 
 § 49. Entries made in the usual Course ol Business. — The memoranda or 
 book-entries of an officer, agent, or business man, when made in the course of 
 his business, and at or near the time of the transaction, are evidence, after his 
 decease, of the truth of such entries.* Particularly are tradesmen's books of 
 original entries receivable in evidence as prima facie proof when supported by 
 their oath,'' though, under the statutes allowing parties to be witnesses, books 
 
 1 Angell V. Keith, 24 Vt. 371. Knapp, 3 Pick. 96 ; Porter v. Judson, 1 Gray, 
 
 2 1 Duer on Ina. 60; Smith v. Odlin, 4 175; Walker ». Curtis, 116 Mass. 98; Livingston 
 Teatee, 468. v. Arnoux, 56 N. Y. 518 ; Gilbdtt v. Sage, 67 
 
 3 McCuUooh II. Eagle Ins. Co., 1 Pick. 280; N. Y. 639; Ocean National Bank v. CarII,55 
 Kennebec Co. v. Augusta Ins. Co., 6 Gray, N. Y. 440; Merrill v. Itliaca, etc., R. Co., 16 
 204; Sanborn v. Firemen's Ins. Co., 16 Gray, Wend. 586. 
 
 448; Trustees jj. Brooklyn Ins. Co., 19 N. Y. "Ball v. Gates, 12 Mete. 491; Linn v. 
 305; Commercial, etc., Ins. Co. v. Union, etc., Nagloe, 4 Whart. 92; Winne v. Nickerson, 1 
 Ine. Co., 10 How. 318; Hamilton v. Lycoming Wis. 1; Sherwood v. Sissa, 5 Jlev. 349; Lin- 
 Ins. Co., 17 Pa. St. 339; Belief Fire Ins. Co. nell v. Sutherland, 11 Wend. 568; Funk v. 
 ■u. Shaw, 4 Otto, 574. Ely, 46 Pa. St. 444 ; Fitzgibbou v. Kinney, 3 
 * Whart. on Ev., § 3:(8 ; Abb.Tr. Bv. 322 ; Best Harr. (Del.) 317 ; Karr ». Stivers, 34 Iowa, 133 ; 
 onEv., § 501; Price v. B.u-l of Torrington, 1 James v. Eichmond, 5 Ohio, 338; Morse v. 
 Salk. 285; Webster ». Welnter, 1 Fost. & Fin. Congdon, 3 Mich. 549; Kerr «. Love, 1 Wash. 
 401; Doe v. Turford, 3 Barn. & Adol. 890; (Va.) 172; Thomson ti. Porter, 4 Strobh. Eq. 
 Bright V. Legorton, 2 De G. F^ & J. 606; 68; Burleson v. Goodman, 32 Texas, 229; 
 Rawlins r. liickards, 28 Beav. 370; Rldgway Forsee ». Matlock, 7 Heisk. 421; Moody «. 
 V. Bank, 12 Serg. & R. 256 ; Clemens ». Patton, Roberts, 41 Miss. 74 ; Bower v. Smith, 8 Ga. 
 9 Port. 289; Nicholls v. Webb, 8 Wheat. 326; 74; Landis v. Turner, 14 Cal. 673; Burr v. 
 James v. Wharton, 3 McLean, 492; Beale v. Byers, 10 Ark. 398; Hissriok t). McPherson, 
 Pcttit, 1 Wash. O. Ct. 241 ; Union Uauk v. 20 JIo. 310. 
 
PAKTICULAK CUSTOMS. 83 
 
 Entries in tlie Course of Business. 
 
 of original entries have lost a good deal of the importance which formerly attached 
 to them as instruments of evidence. "The statutes allowing parties to testify 
 have revolutionized the practice, by making the party the witness and allowing 
 him commonly to use his book as a memorandum to refresh his memory ; • but 
 the rule admitting his account as primary evidence, with certain preliminary 
 proof, is still in force,' and it is convenient to rely upon it in some cases where 
 the right to read the account, as having refreshed the witness's memory, may be 
 doubtful." ' It is, therefore, important to note that it is essential to the admis- 
 sibility of such entries that the books in which they appear are his books of 
 account, kept in the regular course of his business, and that there was a course 
 of dealing between the parties. But a regular account-book is not required; it 
 is sufficient if the instrument has been kept according to the usage of the busi^ 
 ness or of the party. Thus, in Kendall v. Field,^ the plaintiff's intestate was 
 employed by the defendants to hew timber for them in their woods, and in an 
 action for his services a shingle was offered in evidence, and admitted, on which 
 he had entered from day to day, in the woods, an account of the timber hewed 
 by him each day. "Considering the nature of his employment," said the 
 Supreme Court of Maine, where the case went on appeal, "and the place 
 where he was, and that the shingle contained the daily minutes of the busi- 
 ness in which he was engaged, we think it was legally admissible. It was 
 a substitute for a memorandum-book, which answered the purpose at the 
 time, and was, perhaps, as little liable to alteration or erasure, without 
 being detected by the eye, as if made on paper." So, in Rowland v. Burton^ 
 a notched stick was received, with the oath of the party, to prove an account 
 for work and labor, and in other cases the memoranda of savyyers made 
 upon boards and slips of paper, and copied into a book; « the original entries 
 of an account for lumber, made upon separate sheets of paper; ' scraps of 
 
 1 Henry v. Martin, 1 W. N. C. 277; Bamet go to the jury with the party's oath that the 
 
 B.Steinbacli.lW. ST. 0.335. And see Nichols notches were made at the time the work 
 
 V. Haynes, 78 Pa. St. 174. was done ; and the plaintiff had a verdict. 
 
 = Stroud !). TiIton,4 Abb. App. Dec. 243; Wooden tallies were formerly in use in 
 
 Burke v. Wolfe, 38 N, Y. S. &. (J. & S.) 263. England, even for the keeping of public' 
 
 8 Butler V. Cornwall Iron Co. , 22 Conn. 360 ; accounts. Best on Ev., § 298 ; 3 Pepys' Diary. 
 
 Larue v, Rowland, 7 Barb. 107; Tomlinson v. They continue to be used in this country by 
 
 Borst, 30 Barb. 46. bakers and milkmen. Wbart. on Ev., § 611 
 
 4 14 Me. 30. ncJte. 
 
 6 2 Harr. (Del.) 288. The plaintiff in this e Davison v. Powell, 16 How. Pr. 467. 
 
 case was sworn on the voir dire to prove his 7 " There are no appearances on the face 
 
 books, when he produced, as his book of of the account which make it incompetent, 
 
 original entries, a small stick, cut and It ie in the handwriting of the party, and is 
 
 notched in a variety of ways, by which he a fair statement, in the usual manner of an 
 
 undertook to prove an account running account, with date, quantity, and price. The 
 
 through two or three years, and consisting entries are proved to have been made al, or 
 
 of a number of items. He wasfully exam- nearly at the time that the lumber was 
 
 ined, and the accuracy of his entries tested delivered. The party kept no clerk, and 
 
 by an account made out from it some time these were the only entries made of the sale 
 
 before. Theycoi-responded with the excep- and delivery of the lumber. It was also 
 
 tion of one item, and it was afterwards proven that the plaintiff kept coiTect ao- 
 
 asoertained that one of the notches had counts. It is objected, however, that there 
 
 been defaced by the breaking of the stick. was no book in this case of original entries 
 
 The account consisted of thirteen different proven. It is true there was no book 
 
 items, and the court permitted the stick to proven, but it was proven that the identical 
 
84 
 
 ON THE EEQUISITES TO THEIR VALIDITT 
 
 Entries In the Course of Business. 
 
 paper,' and a tabular form,'' have been admitted in evidence. Where there is 
 but a single sale, although that may have included more than one article, books 
 of account cannot be received as evidence of that transaction. They are admis- 
 sible only where a habit of dealing between the parties is proved.' 
 
 paper containing the account was the orig- 
 inal paper and entries thereon of the party ; 
 he kept no other. It is not material whether 
 the entries be made In a book or on a sepa- 
 rate sheet. It is only material that they 
 be an account of the dealing between the 
 parties, and be primary and original. * * * 
 The evidence was, that the witnesses had 
 deiilings with the plaintiff; that they had 
 settled with him npon presentation of their 
 accounts, and that they found those accounts 
 correct. The exception is, that no book of 
 accounts was proven to have been correctly 
 kept by the plaintiff. If, as we have at- 
 tempted to show, it is immaterial whether 
 the original entries were kept in a book or 
 on a separate sheet, then it is not necessary 
 to prove that the plaintiff kept correct 
 accounts in a book. The object of this 
 testimony is to fortify the evidence of the 
 plaintiff's original entries, by showing a, 
 habit of fair dealing in like transactions 
 with others on his part." Nisbet, J., in 
 Taylor v. Tucker, 1 Ga. 231. 
 
 1 Smith V. Smith, 4 Harr. (Del.) 532. But 
 see Jones v. Jones, 21 N. H. 219. 
 
 2 So long as the rule of law is allowed to 
 prevail that the account-books of a plain- 
 tiff, verified by his oath, may be admitted to 
 prove charges for services done and goods 
 sold, much must depend upon the appear- 
 ance and character of the book offered as 
 evidence, and the view taken of it by the 
 judge who tries the case. It is true that the 
 question whetlier a book is competent to go 
 to the jury is a question of law; but as the 
 law has prescribed no mode in which a book 
 shall be kept to make it evidence, the ques- 
 
 tion of competency must be determined by 
 the appearance and character of the book, 
 and all the circumstances of the case, indi 
 eating that it has been kept honestly, and 
 with reasonable care and accuracy, or the 
 reverse. In the present case, the court can 
 perceive no conclusive objection to the 
 admission of a book called a time-book. 
 It is a book kept in a tabular form, in which 
 the days of the month are placed at the head 
 of the column, and the name of the workmen 
 on the side ; and at the end of each day, or 
 near it, a figure is put down at the place of 
 intersection, — say, one, one-half, or one- 
 fourth, —indicating thereby that the person 
 has worked the whole or a fraction of that 
 day. It cannot be objected that the time is 
 put down iji figures, for that is the case in all 
 modes ; nor that it was not an original entry, 
 because that fact must depend, as in other 
 cases, on the oath of tlie party to prove that 
 it was^ade at or about tlic time it purports 
 to be made, and by the proper party. It ap- 
 pears to us to be intelligible, and not more 
 liable to fraudulent fabrication or alteration 
 than entries kept in lodger form, which 
 have been held to be good." Shaw, 0. J., in 
 Uathes v. Eobinson, 8 Mete. 269. And see 
 Hall V. Glidden, 39 Me. 445; Faxon v. Hollis, 
 IS Mass. 128; Jones ». Long, 3 Watts, 325; 
 Bodman v. Hoops, 1 Dall. 85 ; Thayer ». Deen, 
 2 Hill (S. 0.), 677; Richardson o. Emery, 23 
 N. H. 220. 
 
 ' Corning v. Ashley, i Denlo, 354; Vos- 
 burgh 0. Tliayer, 12 Johns. 461; Case v. 
 Potter, 8 Johns. 211 ; Linnell v. Sutherland, 
 11 Wend. 568. 
 
CHAPTEE II. 
 
 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Illustbativb Cases: — 
 
 8. Pmrott V. Thacfier. — A single witness insufficient it contradicted. 
 
 9. Fleet V. Murton. — Proof of usages of other trades. 
 
 Notes : § 50. (Jeneral customs are judicially noticed. 
 
 51. But particular usages and customs must be proved. 
 
 52. Burden of proof — Custom must be proved. 
 
 63. A single vritness may prove a custom. 
 
 64. But not if his testimony be contradicted. 
 
 55. Mode of proving usages and customs — Testimony of witnesses. 
 
 56. Same — Adjudged cases. 
 
 57. Who may be called as witnesses. 
 
 58. Order of proof — Proper questions. 
 
 59. Quantum of evidence. 
 
 60. Law and fact. 
 
 61. Evidence of customs In different places or in other trades. 
 
 62. Customs must be construed strictly. 
 
 63. Conflict of laws. 
 
 64. Pleading. 
 
 8. a single witness insufficient if conteadicted 
 Parrott v. Thacher.* 
 
 In the Supreme Judicial Court of Massachusetts, March Term, 1830. 
 
 Hon. Isaac Parker, Chief Justice. 
 " Samuel Putnam, \ 
 " Samuel S. Wilde, V Judges. 
 " Marcus Morton, ) 
 
 A usage of a particular business is not sufficiently proved by the testimony ot only one 
 witness to support it, where another witness, equally familiar with the business, denies 
 it, and where other witnessps on the subject might be had. 
 
 This was assumpsit for goods sold and delivered, and on the follow- 
 ing note, viz. : " For value received in N. E. rum, for use of myseK 
 and owners of brig Ida, I promise to pay Horace Scudder, or order, 519 
 
 * Reported 9 Pick. 426. 
 
 (85) 
 
86 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Parrott v. Thaclier. 
 
 dollars 53 cents, oa demand, with interest after six months. For myself 
 ind owners of brig Ida. Feb. 28, 1828. Allen Hallett." The note 
 was indorsed by Seudder to the plaintiffs, without recourse. The note 
 ilso contained an indorsement by Seudder acknowledging the receipt 
 of 1163.67, " being net account of sales of 38 barrels of gin, after 
 deducting 100 dollars, amount of an order accepted to pay Joseph Swan 
 out of the proceeds of said gin." 
 
 At the trial, before Wilde, J., it was admitted that the defendants 
 and Allen Hallett were joint owners of the brig Ida, which was built 
 to run as a regular packet between the ports of Boston and Baltimore. 
 Seudder, being called as a witness by the plaintiffs, testified that he, 
 being a commission merchant in Boston, sold a quantity of New Eng- 
 land rum belonging to the plaintiffs to Hallett, who was the master of 
 the Ida, on the credit of her owners ; that the rum went on board of 
 her ; that he took the note in payment ; that he, Stanton, Fiske, Nichols, 
 and the defendant Thacher were agents to procure freights and passen- 
 gers for the Ida ; that it had been a general practice for masters of 
 vessels in this business to take up goods on account of the owners, 
 when a full freight could not be procured ; that Hallett proceeded in 
 the Ida to Baltimore, where, failing to sell the rum, he shipped it to 
 Charleston, where he exchanged it for thirty-eight barrels of gin, which 
 he shipped to Boston, and which, on its arrival, was placed by "Warren 
 Hallett, a brother of Allen Hallett, and one of the defendants, in the 
 witness's hands to sell on account of their note, and that he accordingly 
 sold the same, and made the indorsement of the proceeds on the note. 
 Allen Hallett died on his passage from Charleston to Boston. 
 
 On cross-examination, this witness stated that there was an under- 
 standing between him and Allen Hallett that the proceeds of the rum 
 should be sent to him, though there was no strict bargain to that effect. 
 He admitted that he never consulted with the defendant Thacher, who 
 resided in Boston, and was known to him to be one of the owners, as to 
 the sale of the gin or the purchase of the rum by Allen Hallett, and 
 that Thacher never had notice of the note until after Allen Hallett' s 
 death, and was not called on to pay the balance due upon it until after 
 Allen Hallett' s estate had been represented to be insolvent. The wit- 
 ness said that he expected that the note would have been paid by Allen 
 Hallett, and therefore did not apply to the owners. He also testified 
 that Allen Hallett, some time before he was in the Ida, had been master 
 of the Helen, which belonged to the Union Line of Baltimore packets, 
 and that he had several times sold him goods on the credit of the own- 
 ers, which goods had gone to the credit of the concern, and the pur- 
 
ONE WITNESS WHEN INSUFFICIENT. 87 
 
 Illustrative Cases. 
 
 c'.ases had heen ratified by them ; but that he did not know that the 
 purchase of rum in this case was known to the owners of the Ida at the 
 time it was made. He supposed, however, though he did not certainly 
 know, that it was known to Warren Hallett at the time he put the gin 
 into his hands. Here the plaintiffs rested their case. 
 
 The defendants called Francis Stanton as a witness, who testified that 
 he had been concerned in the lines of packets between Boston and Balti- 
 more, and Boston and New York, for fifteen or twenty years ; that the 
 house of Stanton, Fiske & Nichols, to which he belonged, had been 
 during that period agents for those lines of packets, and still were for 
 the New York packets ; that he had never known the masters of these 
 vessels take up goods on the credit of the owners in Boston, or any 
 other port ; and that there was not, to his knowledge, any such general 
 usage or practice. He said, however, that it was usual in the Union 
 Line to permit masters, when they had short freight, to purchase flour 
 and other merchandise out of the stock, which consisted of funds on 
 hand derived from the earnings arising from freight and passengers 
 and profits of these purchases, but not to make purchases on credit, or 
 otherwise than with the stock ; and that the stock so purchased belonged 
 to the owners. 
 
 The judge instructed the jury that unless they were satisfied, from 
 the evidence, that Allen Hallett was expressly or impliedly authorized 
 by the defendants to purchase the goods for them, or on their credit, the 
 plaintiffs had not maintained their action ; and that the burden was on 
 the plaintiffs to prove that Hallett had that authority. The jury were 
 also instructed that, there being no express evidence of such authority, 
 they should find for the defendants, unless they were satisfied that there 
 was some usage of trade authorizing the master to bind his owners, or 
 that the goods purchased came to the' use of the owners. 
 
 The jury returned a verdict for the plaintiffs for the balance due on 
 the note, deducting the indorsement oi $163.67, with interest. On 
 inquiry, the foreman stated that the jury had rendered their verdict on 
 the ground of a general usage of masters of packets in this line to 
 purchase goods on the credit of their owners; but another juryman 
 stated that he and some of the rest were of opinion that there was 
 sufficient evidence to prove that the rum came to the use of the defend- 
 ants. 
 
 The defendants moved for a new trial, because the verdict was against 
 both law and evidence ; and they also excepted to the verdict on the 
 ground that the $100 paid to J. Swan, being part of the proceeds of the 
 gin, ought to have been applied towards payment of the note. 
 
88 ON THE PKOOF NECE8SAKY TO ESTABLISH THEM. 
 
 Parrott v. Thacher. 
 
 Warner, for the defendants, contended that the verdict was against 
 the evidence. No express authority for Allen HaUett to make the pur- 
 chase on the credit of the owners was proved. Such an authority was 
 not incident to him merely as the master of the vessel. The usage 
 attempted to be proved is unreasonable, because the right of purchasing 
 goods is not necessary for effecting the business for which masters of 
 vessels are appointed. Besides, the evidence does not prove the usage. 
 
 Curtis, contra, to show that the court ought not to grant a new trial 
 where there was evidence on both sides, cited Hammond v. Wadhams ' 
 and Brooks v. Barrett.^ 
 
 Paekek, C. J. , delivered the opinion of the court. 
 
 We are of opinion that there must be a new trial in this case, on 
 account of the defect of evidence to prove that Capt. Hallett was 
 authorized by the owners of the vessel to make purchases and give 
 promissory notes for them. 
 
 There being no express authority, it was supposed to be implied from 
 the usage of this particular trade, or because the rum purchased went 
 to the use of the owners, or because there was a knowledge of the pur- 
 chase on their credit and an acquiescence in it, none of which facts are 
 made out by evidence sufficient to authorize the jury to find a verdict 
 for the plaintiffs. 
 
 In regard to usage, it is proved only by the evidence of Scudder ; and 
 even his testimony hardly proves it, for he says it was a general practice 
 among masters of vessels in this Une of business to purchase goods on 
 the credit of their owners when there was a deficiency of freight. Such 
 a practice may exist short of a usage. And it should seem, when he 
 comes to particularize, that his knowledge of that practice was derived 
 from his transactions with another line of packets, where it may have 
 existed, and not with this line. Such a practice may have existed 
 among masters of vessels, and yet the owners may never have assented 
 to it ; and without such assent the practice would not bind them. In 
 the case of the Union Line of packets, to which the practice mentioned 
 in this testimony had relation, he says that the property purchased by 
 the masters went into the accounts of the concern, and the purchases 
 were ratified by them. TUs is a case without any such account, and 
 without any ratification. But, suppose that the amount of his testimony 
 was that there was such a usage, we think it not sufficiently proved. 
 Usage is a thing which must be public and notorious — at least known to 
 aU masters of packets in this trade. Scudder stands alone in his testi- 
 
 ' 6 MasB. 864. i 7 pick. 96. 
 
ONE WITNESS WHEN INSUFFICIENT. 89 
 
 Illustrative Cases. 
 
 mony, and is directly contradicted by Stanton, an owner, and agent of 
 the Union Line of packets. These witnesses may be supposed equally 
 intelligent and honest. Stantop may have had a bias against establish- 
 ing a usage which might render him liable. Scudder was interested as 
 a commission merchant, to avoid the charge of negligence in selling the 
 plaintiffs' goods to a man unable to pay. Now, here is a subject of 
 common knowledge proved by one witness and contradicted by another. 
 It is not the case of a fact proved by the testimony of one witness and 
 contradicted by another, in which the jury may prefer positive to nega- 
 tive evidence. When the question is of a custom or usage, and it is 
 not known to those who from their business and connections have, the 
 best means of knowing it, ignorance of it is, in some sense, positive 
 testimony that it does not exist. 
 
 Suppose the question to be as to the existence of a usage of trade 
 in some foreign port, according to which the rights of parties are to be 
 decided, and that there are two foreign witnesses, both merchants 
 belonging to the place and dealing in the same business, and one testi- 
 fies in support of the usage and the other against it — can it be said 
 that the usage is proved, especially if other merchants from the same 
 place are here, and have not been called upon? 
 
 Now, the usage in question is said to exist at home, and probably 
 there were many masters of packets, and others, in port who would know 
 if it existed. In such case, we think the fact is not made out so as to 
 require a comparison of evidence ; that, under such circumstances, one 
 witness is not sufficient to prove the existence of a usage of trade of a 
 somewhat extraordinary nature, to wit : that the owners of vessels are 
 to be bound for all purchases made by the masters. 
 
 But there is another sufficient reason for granting a new trial. The 
 jury do not appear to have decided upon either of the points upon which, 
 according to the charge, their verdict was to rest. The foreman stated 
 that they were satisfied with the proof of the usage ; a juror said that he 
 and some others were of opinion that the rum purchased had come to 
 the use of the owners ; from which it is to be inferred that he and those 
 for whom he spoke were not satisfied in regard to the usage. We cer- 
 tainly do not mean to encourage the practice of questioning jurors as to 
 the grounds of their opinions; but where there are distinct grounds 
 upon which the verdict may be given, perhaps it is not improper to 
 ascertain which they adopted, as there may be little or no evidence upon 
 one, and sufficient upon another ; and if it appears that they did not 
 agree upon either oi the grounds, I do not see how their verdict can 
 Btand, unanimity being required. If there are three distinct grounds 
 
90 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Fleet V. Murton. 
 
 upon which an action can be maintained, all independent of each other, 
 and four only of the jury agree upon each, I do not see how they 
 can amalgamate their opinions, and make a legal verdict out of them. 
 With regard to the opinion which some of the jury adopted, to wit, 
 that the rum for which the note was given went to the use of the own- 
 ers, we do not see the least evidence to support it. No account was 
 produced on trial showing any charge or credit to the owners. Scudder 
 expressly states that he had no communication with Thacher respecting 
 the rum, the gin which was taken for some of it which was sold, or the 
 note given by the master. He had some suspicion that HaUett, the 
 brother of the captain, knew of the transaction, because he committed 
 to him the gin to sell ; but there was quite as much reason to entertain 
 a contrary supposition, as Thacher would have been likely to take 
 charge of any property which proceeded from goods belonging to the 
 owners. It being very apparent that the subject was not deliberately 
 considered by the jury, and if a usage existed of the kind supposed, it 
 being quite easy to prove it satisfactorily, we think a new trial must be 
 had. 
 
 New trial granted. 
 
 M. 
 
 9. peoof of usages of other trades. 
 
 Fleet v. Murton.* 
 
 In the English Court of Queen's Bench, November, 1871. 
 
 Sir Alexander James Edmund Cogkburn, Bart., Chief Justice. 
 " Colin Blackburn, Kt., 
 " John Mellor, Kt., 
 " RoBBRT Lush, Kt., \ Judges. 
 
 " James Hannen, Kt., 
 " John Richard Quain, Kt., 
 
 & W., iruit-brolcers in London, being employed by F. & D., merchants in London, to sell 
 tor them, gave them the foUowing contract note, addressed to F. & D. : "We have tliis 
 day sold for your account to our principal * * * tons of raisins. M. & W., brokers." 
 The principal having accepted part of the raisins, and not having accepted the rest, P. 
 & D. brought an action on the contract against M. & W., and sought to make them per- 
 sonally liable by the custom of the trade. On the trial, in addition to evidence of a 
 custom in the London fruit-trade that if brokers did not give the names of their prin- 
 cipals in the contract they were held personally liable, although they contracted as 
 brokers for a principal, they offered evidence of a similar custom in the London 
 colonial market. jTeld, that the latter was also admissible, being evidence in a similar 
 trade in the same place, and as tending to corroborate the evidence as to the existence 
 of such a custom in the fruit trade. 
 
 * RDportod L. U. 7 Q. B. 126; 1 Moak's Rep. 32. 
 
USAGES OF OTHER TRADES. Dl 
 
 Illustrative Cases. 
 
 Declakation : That on the 30th of October, 1869, plaintiffs and 
 defendants agreed that plaintiffs should sell to defendants, and defend- 
 ants should buy of plaintiffs, fifty to seventy tons of raisins at a certain 
 price; that defendants, having accepted part, refused to accept the 
 residue of the raisins according to the contract. Pleas, inter alia, that 
 defendants did not agree as alleged. Issue joined. 
 
 At the trial before Blackbukn, J., at the Sittings in London after 
 Michaelmas Term, 1870, it appeared that the plaintiffs, Messrs. Fleet & 
 Dobbing, are merchants in London, and the defendants, Messrs. Murton 
 & Webb, are brokers in the fruit trade in London. The defendants 
 were employed in October, 1869, by the plaintiffs, to sell for them 
 certain consignments of raisins, and the defendants handed to the 
 plaintiffs the following contract note : — 
 
 " Jfessrs. Fleet & Dobbing. 
 
 "London, 30th of October, 1869. 
 
 "We have this day sold for your account to our principal, to arrive 
 per steamer from Trieste, fifty to seventy tons of good, sound, Chesne 
 raisins in cases, at 41s per cwt, usual market terms. Cash on delivery. 
 F. & D. to draw on M. & W. for £500 (if required) on landing, hand- 
 ing equal value. Customary allowances. 
 
 "Murton & Webb, Brokers, 25 Mincing Lane." 
 
 The defendants had purchased on behalf of Demetrius Pappa, and 
 part of the raisins were accepted and paid for by him through the 
 defendants ; but becoming embarrassed, he refused to receive • any of 
 the other consignments, upon which, on the 1st of December, 1869, the 
 defendants wrote to the plaintiffs informing them that Mr. Demetrius 
 Pappa was the buyer under the contract of the 30th of October, 1869, 
 and that he refused to receive any more of the raisins ; to which the 
 plaintiffs repUed that the buyer was bound to receive the whole, and 
 that they knew nothing of Pappa, whose name the defendants now fur- 
 nished, as the plaintiffs' contract was with the defendants themselves. 
 
 In order to make the defendants personally liable on the contract 
 evidence was tendered on behalf of the plaintiffs that in the London 
 fruit-trade, if the brokers do not name their principal in the contract 
 note itself, the brokers are held personally responsible ^on the contract. 
 And evidence was also tendered of a similar custom in the London 
 colonial market, viz. : that the brokers are held personally responsible, 
 unless they give the name of their principals, in writing, within three 
 days after making the contract. Both classes of evidence were received 
 by the learned judge, after objection by the defendants' counsel, and 
 the jury found that the custom was proved. 
 
92 ON THE PKOOF NECESSARY TO ESTABLISH THEM. 
 
 Fleet V. Murton. 
 
 A verdict passed for the plaintiffs (the amount to be afterwards 
 settled), with leave to move to enter a verdict for the defendants, or a 
 nonsuit, if the court should be of opinion that evidence of custom was 
 not admissible. 
 
 A rule was obtained, accordingly, to enter a verdict for the defendants, 
 or a nonsuit, on the ground that the evidence of custom was not 
 admissible to add to, alter, or vary the contract ; or for a new trial, on 
 the ground that evidence of the custom in the colonial market was not 
 admissible. 
 
 H. James, Q. C, and Cohen showed cause. — The first point, as to the 
 admissibility of evidence of a custom in the particular trade whereby 
 the broker is held personally liable on the contract unless he discloses his 
 principal's name, is concluded by the authority of Hamfrey v. Dale. ^ This 
 custom is clearly not inconsistent with the written contract within that 
 case. Nor is it any answer to say that to hold the defendants liable 
 would be to make two principals in the contract : that double liability 
 occurs whenever a broker contracts for an undisclosed principal.^ But 
 the true answer to any difficulty as to the written contract is this : The 
 contract between the plaintiffs and defendants is the contract of employ- 
 ment, not the contract of sale, and the custom is attached to the 
 employment. 
 
 [Blackbukn, J. — That is how it has always struck me ; but then the 
 declaration should have been on the contract, as evidenced by the cus- 
 tom, in a count similar to a count in a del credere commission.] 
 
 The court has full power to amend. Secondly, the evidence as to the 
 custom in the colonial trade was admissible as evidence in an analogous 
 trade in the same place. In Noble v. Kennoway,^ the contract relating 
 to Labrador, evidence was admitted of the custom in Newfoundland as 
 to similar voyages in the fishing trade. Falkner v. Earle ^ is a similar 
 decision as to different or new ports in the same country. 
 
 Murphy, in support of the rule. — The custom here contradicts the 
 contract, for the name must be given on the face of the contract, other- 
 wise the broker is to be taken as principal; which distinguishes the 
 case from Humfrey v. Dale. Fairlie v. Fenton « is directly in point for 
 the defendants." Secondly, no foundation was shown for the admission 
 of the evidence of the custom in the colonial trade ; there was no evi- 
 dence that the two trades were in any way analogous. In Noble v. 
 
 1 7 El. & Bl. 266 ; 26 L. J. (Q. B.) 137 ; s. o. 3 2 Doug. 510 
 
 In Brohequer Chamber, El. Bl. & El. 1004 ; 27 * 3 Best & S. 360 ; 32 L. J. (Q. B.) 124. 
 
 L. J. (Q. B.) 890. s L. R. 5 Exch. 169. 
 
 ' Higgine v. Senior, 8 Moe. & W. 834; Col- 
 der V. Dobell, L. R. 6 0. P. 486. 
 
USAGES or OTHER TRADES. 93 
 
 Illustrative Cases. 
 
 Kennoway the trades of Labrador and Newfoundland were identical, 
 both being the fishing trade. To hold that this eyidence was admissible 
 wiU be to go further than any case has yet gone. 
 
 CocKBCRN, C. J. — I am of opinion that this rule must be discharged. 
 I quite agree in the propriety and soundness of the decision given by the 
 Court of Exchequer in the recent case of Fairlie v. Fenton, where the 
 plaintiff contracted as a broker for the principal named, for in that case 
 the principal was named ; and I am of opinion that the same principle 
 would apply where the principal is not named, so long as it appears on 
 the face of the contract that the broker is contracting as broker for 
 a principal, and not for himself as principal; and in that case, also, 
 the broker would not be liable on the contract if the principal failed to 
 fulfil his contract. But I think, nevertheless, that the evidence of the 
 custom was admissible, and that after that evidence had been given, 
 the brokers were properly held liable on the contract. For, although 
 where a party contracts as agent there would not, independently of 
 some further bargain, be any. liability on him as principal, yet if a 
 man — though professing on the face of the contract to contract as agent 
 for another, and to bind his principal only, and not himself — chooses 
 to qualify that contract by saying that he wiU make himself liable, 
 though he is contracting for another and giving to another rights under 
 the contract, he himself will incur the same liability as his principal. 
 Now, although where a party professes to contract as broker it might 
 prima facie be taken that he contracts without the intention of incurring 
 liabUity on his own part, yet if by the custom of that particular trade 
 there is that qualification of the contract [which, if written into the con- 
 tract in extenso, would undoubtedly bind Mm] , that qualification may, I 
 think, be imported into the contract by evidence of the custom. In the 
 case of Fairlie v. Fenton there was no qualifying circumstance like the 
 custom in the present case. The defendants here undoubtedly call 
 themselves "brokers," acting for their principal. But if the custom 
 attaches, the non-liability which would, under ordinary circumstances,' 
 prima facie exist in a contract made by a person purporting to contract 
 as broker, ceases, and the contract assumes a different form and char- 
 acter, and carries with it different legal consequences, by reason of the 
 custom of the trade, evidence of which, -according to all principles, is 
 admissible to qualify the terms of a contract where not inconsistent 
 with it. 
 
 I am of opinion, therefore, that the evidence of custom in the partic- 
 ular trade was properly received by my brother Blackburn to fix the 
 liability of the defendants. 
 
94 ON THE PBOOF NECE8SABY TO ESTABLISH THEM. 
 
 Fleet V. Murton. 
 
 I own I entertain somewhat more doubt as to the admissibility of 
 evidence of a similar custom in other trades than in the particular trade 
 which was the subject-matter of this contract. This case seems to me 
 to go further than the ease of Noble v. Kennoway, which related to the 
 admissibility of evidence of custom in the trade of Newfoundland as 
 applicable to the custom of the trade in Labrador. Labrador had been 
 recently annexed to Newfoundland, i and the trade in each was of the 
 same description, it being a trade that related to fishing. By the terms 
 of the contract (a policy of insurance), the ship was to be at liberty to 
 call at Newfoundland, and it might be fairly inferred by persons enter- 
 ing into a contract with reference to the trade of Labrador that what 
 was the custom of the trade of Newfoundland would extend to the trade 
 of Labrador. But this case goes further. At the same time, it is 
 impossible to shut one's eyes to the fact that the moral effect of the 
 evidence would operate on a reasonable mind with very considerable 
 force. If there exists a custom to the effect that the agent makes him- 
 self liable, under given circumstances, in a large and extensive trade 
 like the colonial trade, it makes it more probable that in the fruit trade 
 in the Mediterranean, or elsewhere, a simUar custom would obtain. I 
 am not quite so clear on the point, but still I do not think that the 
 argument addressed to us goes so far as to show that this evidence was 
 not admissible. There is no doubt that it would be useful in elucidat- 
 ing the truth ; and therefore, on general principles, I think the evidence 
 was admissible, and I concur with the judgment which my learned 
 brothers are about to pronounce. 
 
 Blackburn, J. (after deciding the fibrst point). — Now, passing from 
 that point, we have to consider whether the evidence of custom in the 
 colonial trade was admissible ; and I am bound to say that I clearly 
 think it was. The objection taken was, that there was no evidence to 
 make the defendants, the brokers, responsible at all. Then the plain- 
 tiffs' counsel said: "I wUl prove by evidence of persons connected 
 with the fruit trade that the broker, where he does not disclose the 
 principal's name, makes himself personally liable." The plaintiffs 
 accordingly offered evidence to prove such a custom, and, to strengthen 
 
 1 The disputed territories ol Newfound- 83, Labrador was made part ol the then 
 
 land and Labrador were ceded by the French province of Qnebec, ami afterwards, in 1791,. 
 
 to the English by the treaty of Utrecht, in on the division of that province into Upper 
 
 1713, and this cession was Anally affirmed and Lower Canada, it became part of the 
 
 by the treaty of Paris, in 1763 ; and in Goto- lower province. Finally, in 1809, by 49 Geo. 
 
 her of that year Labrador was annexed to HI., o. 27, § U, Labrador waK reamiexed t» 
 
 the government of Newfoundland by royal Newfoundland, 
 proclamation. In 1774, by 14 Geo. III., o. 
 
USAGES OF OTHER TRADES. 95 
 
 Illustratiye Cases. 
 
 the evidence, showed that in the colonial trade brokers did incur a 
 personal liability if they did not disclose their principal's name. What 
 was proved was this : that the trades were very closely allied to each 
 other. An brokers are very closely connected with each other ; they all 
 deal with merchants, and with much the same merchants, in the general 
 way of business ; and they buy and sell, sometimes fruit, sometimes 
 wool, and sometimes other things. And it struck me, where the ques- 
 tion was. Does a broker in the fruit trade, if he does not disclose his 
 principal's name, incur a personal liability in consequence? that it would 
 be proper evidence for a jury to consider and weigh that such a custom 
 existed in other trades, and that in those other trades the broker did 
 incur a personal liability. I think it cannot be denied that any sensible 
 person would say that the existence of such a liability in the colonial 
 trade as was established in Humfrey v. Dale ^ would be very cogent evi- 
 dence as to whether there would be such a liabiUty in the fruit trade. 
 That is the reason — because I thought it would have this strong bearing 
 on the case — that I left it to the jmy. I quite agree that the case of 
 Nohle V. Kennoway ^ bears but slightly upon the point. It is to some 
 sUght degree analogous, but very slightly indeed, and there is no other 
 autiiority cited at all; therefore, we must go on the principle of 
 common sense. This point was not reserved ; but if the defendants go 
 to error on the other main point, they ought to have leave to take this 
 point also. 
 
 Mellor, J. — I am of the same opinion. I do not propose to add 
 anything as to the first two points, because I think they have been con- 
 clusively disposed of by my lord and my brother Blackburn. But 
 with reference to the last point, as to the admissibility of the evidence 
 of the custom in the colonial trade, which is a new point, so far as I am 
 aware, I think this case goes further than any case has actually gone ; 
 yet I cannot help thinking that the evidence was relevant to this case, 
 and admissible on the ground that, showing, as it did, what was the 
 custom in other trades, — though not so analogous, no doubt, to the trade 
 in question as was the trade in Noble y. Kennoway,^ — it tended to show 
 the probability that in the fruit trade as well as in the colonial trade 
 the broker did, under given circumstances, undertake a similar respon- 
 sibility 
 
 Bule discharged. 
 
 ' Supra, p. 92. • Supra, p. 92. 
 
 ' Supra, p. 92. 
 
96 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Judicial Notice. 
 
 NOTES. 
 
 § SO. Qeneral Customs are judicially noticed. — General customs of the 
 country and the general customs of merchants are judicially noticed by the 
 courts ; having become a part of the law, and having been recognized by prior 
 decisions, subsequent judges are bound to know them.' In Qregory v. Wendell,^ 
 which was an action growing out of an "option" contract, the court, after 
 remarking that the books drew many nice distinctions as to the right of a person 
 to sell personal property not at the time owned by him, but which he intended 
 to go into the market and buy, said: " Courts must, however, from necessity, 
 recognize the methods of conducting and carrying on business at the present 
 day, and, applying well-settled principles of the common law, enforce what 
 might be called a new class or kind of agreements, heretofore unknown, unless 
 they violate some rule of public policy." So, the courts have taken judicial 
 notice of a mercantile custom under which mercantile establishments furnish 
 each other's clerks or customers with goods, and charge them to each other;' 
 of a public usage to flsh in private ponds unless the owner has given public 
 notice that it will not be allowed,* and of a church to keep a record ; ' and 
 courts will take judicial notice of the custom of brokers, as part of the general 
 custom of merchants.^ 
 
 The usage of " banking hours " is said by Mr. Morse' to be the only banking 
 usage which has ever been judicially taken notice of by the courts. That por- 
 tion of the day in which only banks transact business with the public — gener- 
 ally the same with all banks in the same city Or town — is well understood by the 
 public, who must be ready within those hours, and the courts wiU take notice 
 of it without proof, provided the place is within their jurisdiction; otherwise 
 the hours must be proved.^ Yet a custom to do certain acts after those hours 
 may be shown.' And other customs have been judicially noticed — as, the usage 
 of bankers to allow their depositors to withdraw their funds in parcels, and to 
 permit them to make an assignment, as by check, of a portion of the amount to 
 their credit.'" 
 
 § 61 . But particular Usages and Customs must be proved. — On the other 
 hand, courts take no notice of local and partictflar usages, but they must be 
 proved, like other facts, and necessarily by parol evidence.'' The usages of banks 
 in regard to the mode in which current deposits and the proceeds of notes and 
 
 1 Davis V. Hanly, 12 Ark. 646; TJnited w. Switon, 2 Taan. 2M; Hare ». Heiity, 10 
 States V. Arredondo, 6 Pet. 718. 0. B. (N. S.) 66 ; Calisher v. Forbes, 41 L. J. 
 
 2 39 Mich. 337. (Oil.) 66; Salt Springs National Bank ». 
 « Cameron v. Blackman, 39 Mich. 108. Burton, 58 N. Y. 430. 
 
 * Marsh v. Colby, 39 Mich. 626. » Marshall v. American Express Co., 7 
 
 » " We must take notice ol a usage so gen- Wis. 1. 
 
 eral as that ol a church to keep a record." w Munn v. Burch, 25 III. 86. 
 
 Shaw.O. J.,in Sawyer S.Baldwin, 11 Pick. " Eager d. Atlas Ins. Co., 14 Pick. 141; Gor- 
 
 492; Narragansett Bank w. Atlantic SUk Co., don v. Little, 8 Serg. & R. 567; Snowden v. 
 
 8 Mete. 282. Warner, S Rawle, 101 ; Smith v. Wright, 1 
 
 » Jones «. Pepperoorne, 28 L. J. (Oh.) 168. Gaines, 44; Ward v. Everett, 1 Dana, 429; 
 
 ' Morse on Banks, 433. Senao v. Prltohard, 4 La. 160; Merohanto' 
 
 8 Parker v. Qordon, 7 East, 385; Jameson Mutual Ins. Oo. v. Wilson, 2 Md. 217. 
 
BUBDEN OF PROOF. 97 
 
 One Witness Sufficient. 
 
 drafts placed with them lor collection are paid, cannot be judicially noticed, but 
 must be proved.' Nor can a court take judicial notice of a custom in a city, in 
 improving streets, first to regulate and grade, and then to pave, as separate and 
 •distinct works. ^ 
 The usages of another State may be proved by witnesses.' 
 
 §52. Burden of Frool — Customs must be proved. — The custom must be 
 proved by the party setting it up ; the burden is on him.* It must be clearly 
 proved. " Doubt must be wholly eliminated from the evidence adduced, or the 
 usage is not well proved." * Therefore the custom must be given in evidence, 
 and may not be left to be found by the jury from their own familiarity with 
 business affairs. In a Texas case,' the judge, in charging the jury, said: "I 
 am not familiar with this custom of merchants in settling with insurance offices, 
 or what are the liabilities of insurers in case of partial loss. I see on the jury 
 planters and merchants, who doubtless are familiar with transactions of this 
 kind ; you will apply the rules of the same to the nature of this kind of trans- 
 action." The Supreme Court held this erroneous, because, so far as the trans- 
 action was governed by law, it belonged to the judge to declare the law, and so 
 far as it rested on custom, the custom was a fact to be given in evidence to the 
 jury. "The custom," said Lipscomb, J., "was not dependent on the knowl- 
 edge any particular juror might have of such custom. If this were permitted, 
 each juror might assume to know of his personal knowledge what the custom 
 was, and no two of them agree. If it was supposed that such knowledge was 
 possessed by any one or more of the jurors, it was perfectly competent to make 
 witnesses' of such jurors; they would then be in the hands of each party, to 
 ascertain the means of acquiring a knowledge of such fact on the part of the 
 juror. The oath of a juror will not permit him to find a verdict on what he may 
 think he knows, of himself; because then he would be passing on evidenpe 
 known to himself, and not to his fellow-jurors." 
 
 § 53. A single Witness may prove a Custom. — It has been much debated 
 whether the existence of a usage or custom can be sufficiently proved by the 
 testimony of a single witness. In Wood v. Hiokok,'' decided by the Supreme 
 Court of New York in 1829, Sutheklaub, J., after disposing of the case on 
 other grounds, added : " The testimony of one of the witnesses that it is the 
 uniform practice of grocers to charge interest on goods sold, after ninety days, 
 unless a special agreement to the contrary is made, does not amount to proof of 
 the usage of a particular trade of which all dealers in that line are bound to take 
 notice and are presumed to be informed." This expression, as said in Vail v. 
 Biee,^ appears to have been casual, was not upon a point at issue in the cause, 
 and does not conflict with the proposition that the testimony of one witness who 
 has adequate means of knowledge may be sufficient to prove the existence of a 
 usage in a given trade or business. Nevertheless, in a South Carolina case it is 
 
 1 Planters' Bank v. Farmers', etc., Bank, » Adams v. Pittsburg Ins. Co., 76 Pa St 
 8 GiU & 3. 449. 411. 
 
 2 Ee Walter, 75 N. Y. 354. e Green v. Hill, i Texas, 465. 
 » McNeill V. Arnold, 17 Ark. 164. ' 2 Wend. 501. 
 
 < Oaldeoott v. Smytbies, 7 Oar. & P. 808. ' 5 N. T. 155. 
 
98 ON THE PKOOF NECESSARY TO ESTABLISH THEM. 
 
 One Witness Sufficient. 
 
 held that one witness is not enough. ' In Alabama, while it is intimated in several 
 cases that one witness is insufficient to prove a usage,^ the correct rule is stated 
 by COLLiEK, C. J., in a case decided in 1846 : " If a single witness testifies fully 
 and explicitly to the existence of a usage, and is not contradicted by opposing 
 evidence, we should think that it could not be assumed as a legal conclusion 
 that the proof was insufficient.'" And in another case Stone, J., said: "We 
 cannot lay it down as a positive rule that more than one witness is required to 
 prove the existence of a custom or usage, before such usage or custom can 
 become an element of contracts. No statute has prescribed such rule, and we 
 are not able to perceive in the nature of the question a necessity for so radical a 
 departure from general principles." * In an early case in the Federal courts,' 
 Mr. Justice Washington ruled that a single witness was insufficient to estab- 
 lish a usage ; but there the discussion seems to be set at rest by the case of 
 Sobinson v. United States,' decided in the Supreme Court of the TTnited States 
 in 1871, in which it is said: "It is objected that the usage was proved by a 
 single witness. But we cannot assert as a rule of law governing proof of usages 
 of trade that if a single witness have a full knowledge and a long experience on 
 the subject about which he speaks, and testifies explicitly to the antiquity, 
 duration, and universality of the usage, and is uncontradicted, the usage cannot 
 be regarded by the jury as established." In Thomas v. O ^Sara,'' decided in 
 South Carolina in 1817, a new trial was granted because the evidence of one 
 witness called in the court below to prove a custom was rejected. In Vail v. 
 Bice,^ the court held that the usage in question might be proved by only one 
 witness, remarking that there was nothing in the character of the fact that a 
 usage in a given branch of trade exists which renders it important" that such 
 fact should be established by more than one competent witness. Jones v. Eoey,' 
 decided in Massachusetts in 1880, is to the same effect; and in many other cases 
 the testimony of a single witness called to prove a usage has been received 
 without objection or comment.'" The weight of authority, as well as sound 
 reason, is against the rulings in those cases where one witness was held, as a 
 matter of law, incompetent to establish a usage. Cases might often arise in 
 which the administration of justice would be needlessly delayed if two or more 
 witnesses were inexorably required. When only one witness is called to estab- 
 lish the fact of a usage, the duty of a court and jury will always lead to an 
 inquiry and examination into the circumstances ; and if his single testimony is 
 not satisfactory, it will not be allowed to prevail. The question whether the tes- 
 timony of one witness to such a fact is sufficient, may be safely left in every case 
 to the court and jury. 
 
 § 54. But not if his Testimony bo contradicted. — The principal case of 
 Parrott v. Thacher " did not decide that one witness is not enough to prove a 
 
 1 Halwerson v. Oole, 1 Spears, 321. » 5 N. Y. 155. 
 
 2 Price V. White, 9 Ala. 663 ; Jewell v. « 128 Mass. 585. 
 
 Center, 25 Ala. 498 ; Smith v. Rice, 56 Ala. «7. '« Bissell v. Ryan, 23 lU. 566; Pittsburg «. 
 
 s Marston v. Bank of Mobile, 10 Ala. 284. O'Neill, 1 Pa. St. 342; Se*ell v. Corp, 1 Car. 
 
 * Partridge v. Forsyth, 29 Ala. 200. & p. 372 ; Citizens' Ins. Co. v. McLaughlin, 63 
 
 » Barclay v. Kennedy, i Wash. C. Ot. 350. Pa. St. 485 ; Cohea v. Hunt, 2 Smed. & M. 227; 
 
 « 13 WaU. 363. Miller v. Insurance Co., 1 Abb. N. 0. 470. 
 
 ' 1 Mill Const. 303. u ^me, p. 86. 
 
BURDEN OF PKOOF. 99 
 
 Mode of Proof. 
 
 usage, but simply ruled that under the circumstances there shown — there 
 being a conflict on the point, and other testimony being easily obtainable to 
 support the usage — the single witness was insufficient. The testimony of one 
 witness stands until contradicted; but then, if the opposing witness has 
 «qual means of knowledge and appears equally worthy of belief, the burden 
 of proof being upon the party setting up the custom to establish it, his proof 
 must necessarily fail. In several cases, .therefore, the evidence adduced has 
 been considered as too conflicting to establish the custom endeavored to be 
 shown, and it has failed for that reason.' Thereifore, if the custom is likely to 
 be disputed, it will be necessary for the practitioner to have additional evidence ; 
 and even were there no such fear, it would be safer, as an appellate court would 
 probably never interfere with the verdict of a jury which had refused to recog- 
 nize a usage proved by the testimony of but one witness.'' 
 
 § 66. Mode of proving tTsages and Customs — Testimony of Witnesses. — 
 In considering the mode of proof of usage and custom, there is a distinction to 
 be noted between those cases in which the legal liability of the parties is sought 
 to be affected by a usage of trade, and those in which the object is simply 
 to ascertain the sense in which certain words or mercantile terms are used 
 in commercial contracts. 
 
 (o.) A usage of trade cannot be proved by the opinion of witnesses as to the 
 law, or as to what should be the rule. The witness or witnesses must testify to 
 the existence of the usage. The custom of merchants, or mercantile usage, does 
 not depend upon the private opinions of merchants as to what the, law is, or even 
 upon their opinions publicly expressed, but it depends upon their acts. The 
 inquiry is not into the opinions of traders and merchants as to the law upon a 
 mercantile question, but for the evidence of a fact, viz. : the usage or practice 
 in the course of mercantile business in the particular case.' Therefore, in an 
 
 1 Bushforth v. Hadfleld, 6 East, S22; Hoi- Dong. 653. "The proposition to prove the 
 demess r. OolUnsoia, 7 Bam. & Cress. 203; legal effect of a written instrument by the 
 Lewis V.Marshall, 7 Man. & G. 729; Green «, opinion of merchants is a novelty. Possibly 
 Farmer, 4Burr. 2321 ; HasMns v. Warren, 115 if these words, ' sailed on or about ' a given 
 Mass. 514; Winthrop v. Union Ins. Co., 2 day, had acquired any meaning in trade or 
 Wash. C. Ct. 7. commerce different from their ordinary 
 
 2 Thomas v. Graves, 1 Mill Const. 308; import, evidence to that effect might have 
 Treadway v. Sharon, 7 Nev. 37. been admissible, but that was not the 
 
 3 Allen V. Merchants' Bant, 22 Wend. 45. offer." Hawes v. Lawrence, 3 Sandf . 193 ; 
 " The inquiry in these and the like cases, s. c. 4 N. Y. 345. *' A custom must be 
 however, is not after the opinion ol traders proved by evidence of facts, and not by 
 and merchants in respect to the law upon mere speculative opinions; by means of 
 a given mercantile question, but after the witnesses who have had fi'equent and actual 
 evidence of a feat, to wit: the usage or experience of the custom. The testimony 
 practice in the course of mercantile busi- of those who speak from report only, and 
 ness in the particular case. Independently not from particular instances within their 
 of this usage, merchants are no more per- own knowledge if receivable at all, is of no 
 mitted by courts to testify to the commer- wei^t. The witnesses here do not speak 
 cial law than other individuals. Their of particular instances within their own 
 understanding of the usage is given, which knowledge where the right to reclaim goods 
 usage may be the rule of the case to be has been asserted on the ground of such 
 decided." Kelson, J., in Allen v. Merchants' conditional delivery, and been acquiesced 
 Bank, 15 Wend. 482 ; Carvick v. Vichery, 2 in by the purchasers. There is no evidence 
 
100 ON THE PKOOF NECE88AKY TO ESTABLISH THEM. 
 
 Mode of Proof. 
 
 early case, a witness being asked whether there was any general course of 
 business as to the matter in dispute, Chief Justice Tindal interrupted him, 
 saying: " Is there any general course of business? Let your mind revolve over 
 instances. I am not asking you whether It is just and proper, but whether 
 there Is any prevailing course of business. Either yon know such a course of 
 business or you do not. If you do not, say so." ' And it is laid down in a 
 number of cases that a usage must bg proved by instances, and not by opinions.' 
 It would, perhaps, be more correct to say that while the witness cannot be per- 
 mitted to state what the custom is, without more, — because such testimony, 
 on the one hand, might be his idea of what it should be, and on the other, might 
 be what some one had told him, and would therefore be hearsay, — yet, if his 
 knowledge has been derived from his own personal experience of the business 
 in which it exists, his evidence will not be incompetent simply because he can- 
 not refer to particular cases to illustrate his statement of what the usaa;e is.' 
 As said in the recent case of Qalluja v. Lederer: * " To prove the exist nee of a 
 custom, something more than the judgment or the conclusion of the witness 
 called to support it is required. A custom is the result of usage, and can only 
 be properly shown by proof of the usage from which it may be claimed to 
 be derived. The inquiry in such cases is not after the opinions of traders and 
 merchants in respect to the law upon a mercantile question, but for the evidence 
 of a fact, to wit: the usage or practice in the course of mercantile business in a 
 particular case." If this fact is clear and fixed in the mind of the witness as a 
 fact, and not as a mere opinion, there is no reason for absolutely insisting on 
 his stating any individual cases. Therefore, in Hamilton v. Mckerson '" it was 
 held that a witness may state his belief of what the custom is, although unable 
 to give any instances of it. A custom for warehousemen, in the absence of the 
 consignee, to pay carriers' charges in certain cases being set up, a witness was 
 called to prove it, who testified that all the absolute knowledge he had on the 
 subject was derived from his own business; that he had been agent of a line of 
 
 of fact— no evidence that the pnrohaeers another oJ the particular profession wonld 
 
 have had frequent and actual experience of charge, but what is the usual or customary 
 
 the custom; and without this I cannot say rule of compensation. Pfeil v. Kemper, 3 
 
 the custom exists." MoConn, V. C, in Mills Wis. 318. 
 
 ». Hallock, 2 Edw. Oh. 652. Bishop v. Clay Ins. Co., « Conn. 430; 
 1 Hall V. Benson, 7 Oar. & P. 711. And Kobinson «. Chittenden, 7 Hun, 133 ; Shackle- 
 see Edie V. East India Co., 1 W. Black. 295 ; 2 ford v. New Orleans, etc., R. Co., 37 Miss. 202; 
 Burr. 1216. "Yon may examine witnesses Consequati. Willings, 1 Pet. C. Ct. 230; Bry- 
 to prove a particular course of trade, or ant ». Kelton, 1 Texas, 434; Hagertyo. Scott, 
 other matters in the nature of facts, but 10 Texas, 525 ; Chenery ». Goodrioh, 106 Maes, 
 not to show what the law is. Nothing could 566 ; Mills v. Hallock, 2 Edw. Oh. 652 ; Sigs- 
 be more dangerous than to fix the law upon worth v. Mclntyre, 18 111. 126; Bisaell ». 
 the opinions of particular men." Ruan v. Ryan, 23 111. 666; Cox ti. O'Riley, 4 Ind. 369; 
 Gardner, 1 Wash. C. Ot. 145 ; Winthrop v. McOlintock v. Lary, 23 Ark. 215 ; Syers v. 
 Union Ins. Co., 2 Wash. C. Ct. 7. "Usage Is Bridge, 1 Doug. 509; Haskins ». Warren, 116 
 made not by opinions, but by the usual acts Mass. 514 ; Cunningham u. Eonblanque, 60ar. 
 and conduct of men in a given class of cases." & P. 44. 
 
 Fletcher!). Seekell.l R.I. 267. The value of s Camden v. Cowley, 1 W. Black. 417; 
 
 services requiring the exorcise of profes- Insurance Co. v. Weide, 11 Wall. 438. 
 sional or artistic skill may be proved by ^ 1 Hun, 282. 
 
 usage. Such usage must, however, be 13 Allen, 351. 
 
 established by proving, not what one or 
 
MODE OF PROOF. 101 
 
 Facts, not Opinions. 
 
 packets between New York and Boston (in which latter place the custom was 
 alleged to exist) for a long time ; that he could state what he believed the 
 general custom to be, from a knowledge of the business and of the custom, but 
 could not state individual cases ; and that he knew of it in the way men gener- 
 ally gather knowledge. Another witness, in the same business, was allowed ,to 
 testify that he believed this to be the custom, and was willing to swear to his 
 belief. In the Supreme Court it was ruled that the testimony had been 
 properly received. " The existence of a custom or usage of trade," said 
 BiGEi.ow, C. X., "could be proved only by the evidence of those who had such 
 knowledge of the practice and course of business as to create in their minds the 
 belief or conviction of its existence. The factum probandum was not a single 
 Isolated act or occurrence, but the result or conclusion derived from a series of 
 similar acts or circumstances, creating and establishing in the mind of the wit- 
 ness a conviction or belief of the complex whole or comprehensive fact to the 
 existence of which he was called upon to testify. In such case belief is knowledge, 
 and constitutes direct and primary evidence. Indeed, the existence of a usage 
 could not well be piroved by showing particular instances of transacting business 
 in a certain way. The only proper method of establishing the fact was by the 
 testimony of witnesses who had active and constant experience of the manner 
 in which the trade was conducted in relation to the matter in controversy. It 
 was precisely to this point that the testimony of the witness was directed. He 
 stated his belief of the existence of the usage as derived from a knowledge of 
 the business for a long series of years." But the witness must testify to facts, 
 not to inferences deducible from them. Thus, he may testify that such was in 
 fact the custom, but not that, such being the fact, he should consider the custom 
 so and so.^ 
 
 (6.) But the opinions of merchants or other persons engaged in a particular 
 trade or business are admitted by the courts for the purpose of ascertaining the 
 sense in which certain words or mercantile terras are used in contracts. ^ This 
 meaning being ascertained, their opinion as to its legal effect is of course irrel- 
 evant.' In Kirldandv. Nisbet,* at a jury trial in Scotland, the question being as to 
 the extent of an order for goods given by the defenders to the pursuers, which 
 depended mainly on the construction of certain correspondence between the 
 parties, a witness was asked what an employer " would be entitled to expect " 
 on receipt of a particular letter in the correspondence. The court refused to 
 allow the question, and the case was appealed to the House of Lords. There 
 Moncrieff and Molt, Q. C, for the appellants, argued: "The question was com- 
 petent. We wanted to prove that six hundred tons of the sugar had been actually 
 sold to us by the respondents, and that this was the meaning of the word ' con- 
 tracted,' in the letter of the 11th of December, 1850. We produced a witness 
 to prove the mercantile usage, and asked him that question." Lord Chancellor 
 Campbell: "If you had asked the witness about the mercantile usage, that 
 might have been well ; but how could you ask him such a question as this : ' What 
 would the employer be entitled to expect from that letter? ' That was asking 
 
 1 The Albatross v. Wayne, 16 Ohio, 513; " Collyerw. Collins, 17 Abb. Pr. 467. 
 Dean*. Swoop, 2 Binn. 72. Scotch App. Rep. 876. And see 
 
 2 Power V. Horton, 2 Hodge, 16; Allen v.. Huston v. Roots, 30 Ind. 461. 
 Merchants' Bank, 15 Wend. 482. 
 
102 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Facts, not Opinions. 
 
 the witness to explain or construe a written docuinent." Monorieff and Bolt, 
 Q. C. ; "What we wanted was merely to explain the technical meaning of the 
 word 'contracted.'" Lord Chancellor Campbell: "Bat you must defend the 
 question as put. The question was, in substance, ' What is the meaning or just 
 construction of the whole letter? ' " Lord Chelmsford : " What a witness In 
 such cases is called on to do, is merely to explain some technical terms to assist 
 the court, and the court then construes the document. You might have asked 
 the witness what was the technical meaning of the word ' contracted,' if it had 
 any peculiar meaning. But you ask him the meaning of the whole written con- 
 tract. You are not to use the witness as an interpreter, but only as a guide." 
 Lord Chancellor Campbell: "You are not to substitute the witness for the 
 judge." Jfonme/andiJoK, Q. C: "We can carry the argument no further." Lord 
 Chancellor Campbell : " My lords, I think that this question was very properly 
 overruled by the learned judge, because, in effect, it sought to obtain the 
 opinion of the witness on the construction of a written document. There is no 
 doubt that evidence may be competently given of mercantile usage to explain 
 the meaning of peculiar terms used in trade. But what Is the meaning of a 
 written document is not a question proper to put to a witness. The question 
 here put was substantially this : What was the contract — what is the con- 
 struction of the document? That was an improper question, and I have no 
 difficulty in recommending your lordships to affirm the unanimous judgment of 
 the learned judges in Scotland which overruled it." Lords Brougham, Cran- 
 woRTH, and Chelmseord concurred. Therefore, an English dictionary is not 
 admissible to show that a particular word has derived a peculiar meaning from 
 mercantile usage. So, in Houghton v. Oilbart,^ the meaning of the word 
 "cargo" in a policy of insurance being disputed, the defendants' counsel was 
 referring to Entick's Dictionary, when he was interrupted by Chief Justice 
 Tlndal, who said: "It is a question of mercantile construction. You had 
 better lay aside your dictionary, and appeal to the knowledge of the jury; for, 
 after all, the dictionary is not authority." And although, as mil be seen further 
 on,^ extrinsic evidence is admissible to explain doubtful words, or Initials, or 
 ciphers in a will, this must be by showing the testator's common habit of speech 
 or writing to so use them, and not what he intt-uded by so using thom.^ 
 
 § 56. Same — Adjudged Cases. — The usage of trade maybe proved by parol, 
 whether it arises out of a public written law, the edicts or instructions of a 
 foreign government, and whether the trade be allowed or prohibited by such 
 edicts or instructions.* The usages of the land-office must be proved by its 
 published decisions.* A reported case in which a certain commercial usage was 
 held to be established by testimony is relevant in subsequent cases between 
 other parties, involving a similar usage at the same time and place, or at a time 
 and place not far removed.* But it seems that this is not so where the decision 
 
 ' 7 Oar. & P. 701. 4 Livingston v. Maryland Ins. Co., 7 
 
 2 Post, Chap. IV. Oianch, 506; Drake v. Hudson, 7 Har. & J. 
 
 " Hunt V. Hort, S Bro. 0. C. 311 ; Price v. 899. 
 
 Page, 4 Vea. 679; Miller v. Travera, 8 Bing. <• Hammond '■. Warfleld, 2 Har. & J. 151. 
 
 244 ; Clayton v. Lord Nugent, 13 Mce. & « Allen v. Merchants' Bank, 16 Wend. 
 
 W. 200; Weatherhead ti. Sewell, 9 Humph. 482. 
 
 272; Newburgh u. Newburgh, 5 Madd. 223; 
 
 Chaiipel V. Avery, 6 Conn. 84. 
 
BDKDEN OF PROOF. 103 
 
 Witnesses — Order of Proof. 
 
 proceeded upon the stipulation or concession of the parties that the usage 
 existed.' And the decisions of State courts are evidence in the Federal courts 
 of local usages.' Where a party relies upon the reputation of a mining district 
 contained in a book, he must put in evidence the vrhole book, and cannot offer a 
 single extract or clause alone.' 
 
 § 57. Who may be called as Witnesses. — The vntness or witnesses called to 
 give evidence of the existence of a usage may do so from their own knowledge 
 and experience, or from information derived through the course of trade.* All 
 that is necessary is that they should have occupied such a position as to know of 
 its existence as a fact. Therefore, a custom that the employment of an architect 
 to make plans and designs for a building carries with it an employment to 
 superintend its construction, may be proved by builders or contractors as well 
 as by architects ; ' to prove a custom as to adjusting losses on policies on iron, 
 Insurance-brokers as well as iron-merchants are competent ; " to prove a usage 
 of banks, one who is in the habit of dealing with banks is as capable to explain 
 these usages as a banker or a bank employee.' 
 
 § 58. Order of Proof — Proper Questions. — When a witness is interrogated 
 as to a custom, the object and pertinency of the proof should be first shown, 
 either by the question itself or independently, in order that the court may 
 understand its relevancy.' Either party may give evidence of a custom without 
 accompanying it with direct evidence that it was known to the opposite party, 
 provided he intends, on all the evidence to be produced in the case, to show that 
 knowledge.' But strictly, the proper order being to prove the usage first and 
 the notice afterwards, evidence of the usage may well be excluded when the 
 party offering it does not intimate his intention to follow it by proof of knowl" 
 edge of some kind, either express or presumptive." To ask a witness how a 
 certain kind of business is done, — as, for example, the usual mode of transferring 
 notes and drafts from one bank to another, — is not asking a question of law. It 
 is a mere matter of fact, and the legal effect of doing the business in the manner 
 described by him is another and a different question.'' Where a witness was 
 asked, " Do you know of any usage or custom in the life-insurance business as 
 to the commutation of renewals?" it was said on appeal that the proper form 
 would have been, " What is the general or universal usage and custom in the 
 life-insurance business as to the commutation of renewals ? " '? A custom cannot 
 be proved by a witness stating that it is the " custom of the country," nothing 
 being shown as to its extent or the length of time it has existed." 
 
 ' Crouch V. Credit Foncier, L. E. 8 Q. B. ' Griffin v. Bice, 1 Hilt. 184. 
 
 374. 8 Ecker v. Moore, 2 Chand. 85. 
 
 2 Swift V. Tyson, 16 Pet. 1 ; Carpenter v. » Dodge v. Favor, 15 Gray, 82. 
 
 Providence Ins. Co., 16 Pet. 511; Meade v. "> Flynn v. Murphy, 2 E. D. Smith, 378. 
 
 Beale, Taney's Dec. 339. ii Commercial Bank v. Union Bank, 19 
 
 ' English V. Johnson, 17 Cal. 107. Barb. 392. 
 
 < Allen V. Merchants' Bank, 15 Wend. 482. i- Park v. Piedmont, etc., Ins. Co., 48 Ga. 
 
 s Wilson V. Bauman, 80 111. 493. 601. 
 
 « Evans v. Commercial Ins. Co., 6 E. 1. 47. '' Kendall v. Eussell, S Dana, 501. 
 
104 ON THE PROOF NECESSARY TO ESTABLISH THEM. 
 
 Quantum of Evidence — Law and Fact. 
 
 § 59. Quantum ol Evidence. — It is not necessary, in order to prove a valid 
 custom, that all the witnesses on both sides of the case should agree concern- 
 ing it. They may differ as to its existence in the same place or in all places, and 
 in such case the question is one for the jury. But if one set of witnesses prove 
 that they knew of and followed a certain custom in some localities and as to 
 sonfe contracts, and another set show that there was no such custom in other 
 localities and as to other contracts, and none of them state that this custom is 
 notorious, the evidence simply shows a custom local and partial, and is insuf- 
 ficient.! If plaintiff and defendant introduce evidence of different usages, the 
 refusal of the court to rule that if the evidence is conflicting the defendant 
 cannot maintain his defence on the ground of usage, gives the plaintiff no 
 ground of exception, if the defendant relies upon his evidence of usage only to 
 negative the usage set up by the plaintiff.'' In a Missouri case, Wagnbr, J., 
 commented on the evidence offered to prove a usage, as follows : "A large mass 
 of evidence was introduced to show a custom among the merchants that the 
 effect of the order was to vest the title of the ilour in the purchasers, and that 
 from the time the card was handed over to them they became the absolute 
 owners, and that the transference of the same to the plaintiff divested the 
 defendant of all interest. But this branch of the case was not made out. There 
 was great diversity among the witnesses as to the force and meaning of the sup- 
 posed custom, and so far from tending to establish any open, uniform, and 
 notorious rule, the most of the witnesses restricted themselves to declaring 
 what their individual opinions were, and the obligations they should have deemed 
 resting upon them had they been placed in the defendant's situation. This, of 
 course, was all illegal, and should have been excluded." ' 
 
 Newly discovered evidence of a custom in violation of the public laws of the 
 State is no ground for a new trial.* 
 
 § 60. Law and Fact. — Proof of a usage or custom involves questions of both 
 law and fact. It is a question of law what is a sufficient usage to bind the 
 parties : for how long a time, at what places, and with what degree of uniformity 
 it must have been observed; whether, in short, a given state of facts establishes 
 a usage, is a question for the court.* Whether such a state of facts has been 
 proved is a question for the jury," and also whether the parties acted vrith ref- 
 erence to the usage.' On the other hand, the reasonableness of an alleged 
 custom is a question of law for the court,^ and it is error to submit it to the 
 jury." An erroneous ruling excluding, as immaterial, evidence of a custom is 
 cured by a charge to the jury recognizing a general custom of the character' 
 sought to be proved.'" Where evidence of usage is given to control the con- 
 
 ' Dioklnaon v. Oity of Poughkeepsie, 75 ' Powell v. Bradlee, 9 Gill & J. 230; Bur- 
 
 N. T. 66. roughs v. Langley, 10 Md. 248. 
 
 2 Upton V. Sturbridge Cotton Mills, 111 » Bourke !).Kneeland,4Mioh.336; Mnssey 
 
 Mass. 448. ». Eagle Bank, 9 Mote. 306; Smith v. Tyson, 
 
 ' Sonth-Western Freight & Cotton-Press 1 Per. & Dav. 307. 
 " Co. V. Stanard, 44 Mo. 71. o Codman v. Armstrong, 28 Me. 91 ; Randall 
 
 * Lynes v. The State, 46 Ga. 208. v. Smith, 63 Me. 105. See Bodflsh v. Fox, 23 
 
 ' Chicago Packing Co. v. Tilton, 87 III. 548. Me. 90. 
 But see Wilson o. Bauman, 80 111. 493. w Clark v. Cox, 32 Mich. 204. 
 
 Mears v. W(iples, 4 Houst. 62 ; Bryoe v. 
 The Empress, 8 West. L. J. 174. 
 
BURDEN OF PKOOF. 105 
 
 Evidence of Different Customs. 
 
 struction of a written instrument, the jury are to determine its effect.' But the 
 question In many cases is one of extreme difHculty ; wliether a particular custom 
 has been tacitly included in or excluded from a written contract, Is a question 
 purely legal. "We, take it," said the court, in Levns v. Marshall,'' "that the 
 acknowledged distinction is this : if the evidence offered at the trial by either 
 party is evidence by law admissible for the determination of the question before 
 a jury, the judge is bound to lay it before them, and to call upon them to 
 decide upon the effect of such evidence when offered. Whether that evidence is 
 of that character and description which makes it admissible, is a question for the 
 determination of the judge alone, and is left solely to his decision." And when 
 the jury have decided on the meaning of the terms by the assistance of the 
 usage, it is still for the court to construe the entire contract or document.'' 
 
 § 61. Evidence of Customs at different Places or In other Trades. — An Im- 
 portant question here arises as to whether evidence of a custom at a different 
 place is admissible as bearing on the question of a custom at the locus in quo. It 
 was an ancient and well-established rule that the custom of one manor could not 
 be given as evidence to prove the custom of another, because, each manor having 
 customs peculiar to itself, such evidence would be both unsafe and useless.* 
 But in an early English case it was distinctly laid down, that to prove the manner 
 of conducting a particular branch of trade at one place, evidence may be given 
 to show the manner in which the same branch is carried on at another place. 
 This principle was announced in a case decided in the King's Bench in 1780, 
 where, on a policy of insurance on a vessel from England to Labrador, the 
 goods having been seized by a privateer, the question arose whether there had 
 been any unnecessary delay in landing them at Labrador. The plaintiffs, In 
 order to show that there had been no such delay, called witnesses, who proved 
 that according to the custom in Newfoundland, goods were kept on board the 
 vessels several months in some cases. Lord Mansfield having admitted the 
 evidence, the case went to the full bench, where his ruling was sustained. " The 
 defendant says," said Lord I^ansfiicld, "the plaintiffs have been guilty of an 
 unreasonable delay In landing. Tiiat question was to be tried by the jury, and 
 could only be decided by knowing the usual practice of the trade. * * *It 
 is well known that the fishery is the object of the voyage, and the same sort of 
 fishing is carried on in the same way at Newfoundland. I stUl think the evi- 
 dence on that subject was properly admitted to show the nature of the trade. 
 The point is not analogous to a question concerning a common-law custom." 
 
 1 Dawson ». Kittle, 4 Hill, 107; Goodyear d. Fitch, 2 Esp. 543. But evidence of acus- 
 V. Ogden, 4 Hill, 104. torn to perambulate the boundaries of a 
 
 2 7 Man. & G. 729. And see Parker v. parish is not sufttcient to support an alle- 
 Ibbetson, 4 0. B. (N. g.) S46. gation to perambulate the boundaries of a 
 
 ' Hutchison V, Bowker, 5 Mee. & W. 535 ; liberty. Grant v. Kearney, 12 Price, 773. 
 
 Neilson v. Harford, 8 Mee. & W. 806. Where a custom is proved to exist, it will 
 
 * Dane's Abr., chap. 26, § 10; Anglesey v. extend to all tenancies, in whatever way 
 
 Hatherton, 10 Mee. & W. 218. Under a cus- created, whether verbal or in writing, un- 
 
 tom for all the inhabitants of a parish, a per- less expressly or impliedly excluded by the 
 
 son who rents a tenement within the parish written terms themselves. Wilkins v. Wood, 
 
 which he uses occasionally, but in which he 12 Jur. 583; 17 L. J. (Q. B.) 319; Evans v. 
 
 does not actually reside, is included. Fitch Ogilvie, 2Yon. & J. 79. 
 
106 ON THE PKOOF NECJSSSAKY TO ESTABLISH THEM. 
 
 Evidence of Different Customs. 
 
 BULLEK, J., added: "If it can be shown that the time would have been reason- 
 able in one place, that is a degree of evidence to prove that it was so in another. 
 The effect of such evidence may be taken off by proof of a difference of 
 circumstances. It is very true that the custom of one manor i^ no evidence of 
 the custom of another. That has been determined in many cases. But the 
 point here is very different ; it is a question concerning a particular branch of 
 trade." ' In Plaiee v. Allcook,' the defendants, who were bleachers at Nottingham 
 claimed a lien on certain of the plaintiff's hose which had been sent to them to 
 be bleached, under an alleged usage in Nottingham. In order to support their 
 demand the defendants proved, by the evidence of bleachers and hosiers carrying 
 on business there, that it was the custom of bleachers in Nottingham to retain 
 all goods sent to be bleached until they were paid all previous accounts. In 
 addition to this, bleachers carrying on business at Loughborough were called to 
 support the usage. Macaulay, for the defendants, objected that the course of 
 business at Loughborough had no tendency to prove a custom of trade at 
 Nottingham. Field, for the plaintiffs, proved that Loughborough was only four 
 miles distant from Nottingham ; that Loughborough hosiers were in the habit of 
 sending their goods to be bleached at Nottingham, and that Nottingham hosiers 
 also sent their goods to be bleached at Loughborough; and he contended that, 
 by reason of the vicinity of the places and the interchange of trade, the evidence 
 was admissible. Willes, J., admitted it. And in the recent case of Fleet v. 
 Murton,^ the custom of a different market was admitted. The court, although 
 it had some doubt, seeing that the case went further than Noble v. Kennoway, 
 decided that it was admissible, on the general principle that it would be useful 
 in elucidating the truth, and because, in the words of Blackburn, J., "it struck 
 me, where the question was. Does a broker in the fruit trade, if he does not 
 disclose his principal's name, incur a personal liability In consequence? that it 
 would be proper evidence for a jury to consider and weigh that such a custom 
 existed in other trades, and that in those other trades the brokers did incur a 
 persona! liability." So, m- Falkner v. Earle* it appeared that there was a cus- 
 tom at Liverpool of allowing a discount of three months on freight payable on 
 all bills of lading from ports in North America, and that when Texas was 
 annexed to the United States, in 1846, the custom was extended to ports in that 
 territory, and it was held that this was evidence from which a jury might infer 
 that the custom extended to ports in California, after that country had been 
 annexed to the TJnitesl States. 
 
 The American courts have been less liberal in admitting this sort of evidence, 
 being apparently more afraid of encroaching upon some technical rule than 
 desirous of elucidating the whole truth. It was announced by Flandrau, 
 J., in a Minnesota case, that " it is only in some exceptional cases that proof of 
 a usage in one place is allowed to show that it existed in another," ' but with- 
 out saying what those cases were. So, in Delaware, it was said by Gilpin, J. . 
 
 1 Noble V. Kennoway, 1 Dong. 510. See 2 4 post. & Fin. 1074. 
 
 also Milward v. Hibbert, 3 Q. B. 120, where » Ante, p. 90. 
 
 it was held that a plea ol a custom ol trade * 3 Best & S. 360. 
 
 in London might be supported by proot of ' Walker v. Barron, 6 Minn. 608. 
 a custom prevailing in London and other 
 English ports. 
 
CUSTOMS CONSTEUE0 STRICTLY. 107 
 
 Illustrations. 
 
 " It does not follow that because a custom or usage is recognized as obligatory 
 in Philadelphia or New York, that it is recognized as such in Baltimore or New 
 Orleans, or has any force sr effect in these latter cities. The custom or usage 
 in one State may not be the same in another. The States of the Union, in regard 
 to commercial purposes, stand in the relation of foreign States toward each 
 other, so that a custom or usage in one State is not necessarily binding or obli- 
 gatory upon persons engaged in the same trade in another State." ' In Maryland 
 it is held that an insurance policy on a vessel being built in Baltimore is not 
 affected by a usage existing in New Tork ; ^ in Illinois, that a custom of bankers 
 as to checks in New Tork cannot affect the general law in other places ; ' in 
 Massachusetts, that a usage of underwriters in Boston to expressly except 
 barratry of the master from risks, whenever the assured is the owner of the 
 vessel insured, cannot import this exception by implication into a policy written 
 in Gloucester ; ' and in Camden v. Doremus,^ that evidence of a general custom of 
 banks to give notice to the payor of the time notes fall due is admissible upon 
 the practice of the particular bank at which the note in question is payable. 
 
 On the other hand, it is held in an Alabama case* that proof of a general 
 custom among mechanics and artisans in a city, whereby journeymen and 
 employees are required to work for their employers only a certain number of 
 hours a day, and are allowed the privilege of working for themselves at other 
 times, is competent evidence to be submitted to the jury as tending to show 
 the existence of such a custom among daguerrotypists, ambrotypists, and photo- 
 graph painters, whose occupations also belong to the mechanical arts. 
 
 But, where the custom in one place is proved, evidence that it is different in 
 another is inadmissible ; ' and therefore it was held in Michigan that proof of a 
 usage at an insurance agency at one place in the State was not relevant on the 
 question of the practice of an agent at another place, he having testified that 
 his practice was different.^ 
 
 §62. Customs must bo construed strictly. — One of the principal rules 
 governing common-law customs was that all customs in derogation of the 
 common law were to be strictly construed.' Mr. Browne says : " There is 
 always a presumption against a thing while it is only in the making, and a 
 presumption in favor of the thing which is made. There is a deep truth in 
 Milton's remark, that error is only truth in the'making, and consequently it is 
 well to pronounce against a custom which is the making of law, in favor of a 
 law which is recognized, acknowledged, and made. Now, this doctrine of strict 
 construction is a deference to this presumption. Thus it comes that although 
 by the custom of gavelkind an infant of fifteen years may, by a deed of feoff- 
 ment, convey away his lands in fee-simple, this custom would not be held to 
 
 1 Gilpin, C. J., in Meavs v. Waples, 3 « Barnes v. Ingalls, 39 Ala. 193. 
 
 Houst. 581. . 7 Allen v. Lyles, 36 Miss. 613. 
 
 = Mason v. Franklin Ins. Co., 12 Gill & J. « Reynolds v. Continental Ins. Co., 36 
 
 *88. Micli. 131. And see Natcliez Ins. Co. v. Stan- 
 
 ' Strong V. King, 35 111. 9. ton, 2 Smed. & M. 340. 
 
 ■• Parkhurst v. Gloucester, etc., Ins. Co., ' Eicliardson v. Walker, 2 Barn. & Cress. 
 
 100 Mass. 301. ■ 839. 
 
 5 8 How. 515. 
 
10b ON THE PKOOF NECESSAKY TO ESTABLISH THEM. 
 
 Customs Construed Strictly. 
 
 entitle him to effect the same thing by any other conveyance. Such a rule is 
 contrary to the common law ; and although its having become a rule is an indi- 
 cation that it must have had a reason, the fact that the rule of the common law 
 is different proves that there was a reason for the diverse custom which is thus 
 shown. The rational way of dealing with such a case is to give effect, as far as 
 possible, to the latent reason which is in both; and hence the rule of construc- 
 tion to which we have alluded. Thus, where there is a custom that lands shall 
 descend to the eldest sister, the courts will, not extend the authority of this 
 custom to include an eldest niece.' Where, however, there is a custom in a 
 manor that a man may convey his copyhold in fee-simple, that will not be held 
 to preclude him from conveying it for life, for in such a case the lesser right 
 must be held to be included in the greater ; and it was, therefore, here said that 
 although customs must be strictly, they need not necessarily be literally con- 
 strued." ^ And so it is said, in Archei- v. Bokenham,^ that customs are to be 
 construed " strictly, — nay, very strictly, — even stricter than any act of Parlia- 
 ment that alters the common law." 
 
 So of usages of trade — nothing will be presumed to be within them which 
 they are not proved to cover. A custom of delivering goods to a mate of a ship 
 will not excuse a delivery to a deck-hand, or leaving them near the ship in 
 charge of no one ; * a custom for passengers on a boat to place their baggage 
 thereoti without notice to the oflScers will not protect one who does not accom- 
 pany a trunk which he leaves in this way, and who is, therefore, not a "pas- 
 senger;" * a carrier's usage being to give notice of the arrival of goods at the 
 consignee's store, he is not obliged to seek him elsewhere ; * a usage of a bank 
 teller to issue certificates of deposit does not tend in any way to prove a usage 
 for him to certify checks ; ' a usage showing when a voyage is at an end, so far 
 as the payment of premium-notes is concerned, cannot be introduced to show 
 when a voyage terminates as regards the payment of losses ; ^ a usage of a 
 captain of a boat to sign bills of lading for articles deliverable at one port is no 
 proof of authority to sign bills of lading for a different port; " a custom giving 
 to brokers a certain commission will not help a middle-man, >° or one who is not 
 strictly a broker ; " a custom of hardware merchants will not be extended to help 
 commission merchants ; '' and a usage as to the term of employment of travelling 
 salesmen cannot affect a party employed on a share of the profits of his sales." 
 Where a policy of insurance prohibits the insured from keeping on the premises 
 certain specified dangerous articles, the custom of the insured to keep such 
 articles on the premises is immaterial, unless at the time of the fire they were 
 actually there." 
 
 ' Denn v. Spray, 1 Term Hep. 466 ; Muggle- » Moigs v. Mutual Marine Ins. Co., 2 Cush. 
 
 ton ». Barnctt, 2 Hurl. & N. 653. 439. 
 
 2 1 Coleridge's Bla. 79. , » Nichols v. De Wolf, 1 R. I. 277. 
 
 s 11 Modern, 160. lo Rupp v. Sampson, 16 Gray, 398. 
 
 * Leigh V. Smith, 1 Car. & P. 638 ; Packard " Canby v. Friok, 8 Md. 163 ; Main v. Eaglei 
 
 V. Getman, 6 Cow. 757. 1 E. D. Smith, 619. 
 
 6 Wright V. Caldwell, S Mich. 51. 12 Field v. Banker, 9 Bosw. 467. 
 
 « Ely V. New Haven Steamboat Co., S8 • '» Bike v. Pool, 15 Minn. 315. 
 
 Barb. 207. '< Maryland Fire Ins. Co. n. WhiteJord, 31 
 
 ' Mussey v. Eagle Bank, 9 Mete. 306. Md. 219. 
 
CUSTOMS CONSTRUED STRICTLY. 109 
 
 niustrations. 
 
 A usage cannot act retrospectively.' A usage or custom which is disregarded 
 in a court of law cannot be regarded as a rule of action in a court of equity.^ 
 
 In a South Carolina case it was held that the custom of a railroad to allow its 
 contractors to pass up and down on their cars, with their tools, materials, etc., 
 free of cost, could not be extended so as to bind the company to pay the 
 expenses of its contractors on a road belonging to another and different com- 
 pany. " There is a wide difference," said Richardson, J., " between a railroad 
 allowing their contractors, as it may be convenient, to pass up and down in 
 their regular trains of cars, when there is room to spare, and the paying for 
 their passage on other railroads. The former is an accommodation, without 
 positive loss. The latter would be an assumption to pay the debt of another, 
 which requires a valuable consideration. It would be very like a friend who, 
 being in the habit of using your horse gratis, should undertake to hire a 
 horse and charge the hire to you." ' But in New York, where it is the 
 custom at a port, upon the sale of grain being made, that the purchaser 
 selects a measurer, and the measurer so selected is appointed by the board of 
 measurers to perform the duty, it is decided that where the measurement is In 
 fact made by a measurer appointed by the board, the custom is sufficiently 
 complied with, and it is immaterial whether the measurer is selected by the 
 seller or purchaser.* A custom of the ale trade to credit the vendee with ale 
 which, on delivery, was found unfit for use, it was held, would not apply to ale 
 shipped from Chicago to Montana. " It is most unreasonable," said the court, 
 " to make any application of this usage to ale shipped to this distant Territory, 
 exposed to delays, and subject to every variety of carriage." ' Evidence of a 
 custom of boats to carry bank-bills for customers in order to obtain their pat- 
 ronage, is insufflcient to establish a custom of carrying bank-bills for hire.^ 
 
 In a recent Iowa case,' an employee of a railroad company sued the latter for 
 damages for injuries received while operating its road. The circumstances were 
 these: The plaintiff was riding on a construction-train, consisting of several 
 flat-cars and a caboose, the latter being the rear car. The train was near a 
 station, where it was to remain until the next day. The caboose was to be put 
 upon a side-track upon one side of the main track, and the rest of the train 
 upon a side-track upon the other side. The caboose was cut off while the train 
 was in motion, with the design of stopping it upon the main track, and after- 
 wards placing it upon the side-track. The train was in charge of one O., who 
 detached the caboose, the movement of the train having been slackened for that 
 purpose. O. stood at the door of the caboose. Having detached it, he signalled 
 to the engineer to increase speed, which resulted not only in taking up the 
 slack, but in a slight jerk. The plaintiff was standing upon the flat-car from 
 which the caboose had been detached, near the rear end of the car. The jerk 
 caused him to lose his equilibrium, and in stepping rearward to regain it, he 
 fell off and was run over by the caboose, which was following not far behind. 
 
 1 United States v. Buchanan, Orabbe, !J6S. ^ Leggat v. Sands Ale Brewing Co., 60 HI.- 
 
 2 Morrison v. Hart, 2 Bibb, 4. 158. 
 
 'Oolcock V. Louisville, etc., R. Co., 1 « Chouteau «. The Anthony, 16 Mo. 216; 
 
 Strobh. 829. 20 Mo. 510. 
 
 < MoCready v. Wright, 5 Duer, 671. ' Jeffrey v. Keokuk, etc., K. Co. (Sup. Ct. 
 
 Iowa, June, 1879). 
 
110 ON THE PROOF NECESSABT TO ESTABLISH THEM. 
 
 Customa Construed Strictly. 
 
 One of his legs was crushed, and amputation was made necessary. He alleged 
 that O. was negligent in causing the sudden forward movement of the train 
 without giving warning. On the trial, the plaintiff was permitted to give evi- 
 dence of a custom or rule of the company prohibiting " running-switches." 
 But, as what had been done was not strictly making a " running-switch," the 
 Supreme Court held that the evidence was incompetent and should have been 
 excluded. "The rule," said Adams, J., "certainly was inadmissible unless 
 there was evidence tending to show that it was violated, and that the accident 
 occurred by reason of the acts by which it was violated. The only object of 
 introducing the rule must be, to make that negligence which but for the rule 
 and the violation of it would not be negligence. Where an act is such as to 
 constitute negligence of itself, independent of any express rule and its violation, 
 there can be nothing gained by proof of the rule and its violation. Whether an 
 act which, of itself, falls short of constituting negligence can be held to be negli- 
 gence by reason merely of its being a violation of an express rule of the com- 
 pany, we need not determine. It is sufficient to say that the evidence, we think, 
 does not show, or tend to show, a violation of the rule In question. The rule 
 prohibits ' running-switches.' But what was done was not done in making a 
 'running-switch,' nor with the view of making one. The caboose was, to be 
 sure, to be placed upon the side-track, but it was to be stopped upon the main 
 track, and drawn upon a side-track by an engine, which, according to the evi- 
 dence, is precisely not a ' running-switch.' A ' running-switch ' would have 
 been effected by cutting off the caboose while the train was in motion, and 
 causing it, while detached from the engine, to pass upon the side-track, the 
 locomotion resulting from the momentum acquired by the caboose while in the 
 train. This is undisputed. But it is said that what was done is the same thing 
 as what is done as a preliminary step to making a ' running-switch ' — that is, 
 the caboose was cut off while the train was in motion, and was allowed to fol- 
 low. But the evidence tends to show that the danger which makes a ' running- 
 switch ' especially objectionable occurs when the actual switching takes place. 
 If the plaintiff relies upon something as constituting negligence which would 
 fall short of negligence but for an express rule of the company and Its violation, 
 he must show an actual violation." 
 
 § 63. Conflict of Daws. — Where a contract is drawn at a place where both 
 parties reside, such ambiguities as it may contain are to be construed by the 
 usage of that place.' "The general rule then is," says Story, "that in the 
 interpretation of contract, the law and custom of the place of the contract are 
 to govern in all cases where the language is not directly expressive of the actual 
 intention of the parties, but it is to be tacitly inferred from the nature and 
 objects and occasion of the contract." * * * gy tj^ law of England, a month 
 means ordinarily in common contracts, as in leases, a lunar month, but in mer- 
 cantile contracts it means a calendar month." A contract, therefore, made in 
 England for lease of land for twelve months would mean a lease for forty-eight 
 
 ' Whart on Oonfl., § 434; Story on Oonfl.. » Story on Oonfl., § 272. 
 
 §2«3 (citing Watson w.BrowBter.lBaiT, 381; a Oatesby's Case, 6 Coke, 62; Laoon t>. 
 
 Allshouse V. Kanisay, 6 Whart. 331 ; Bennera Hooper, 6 Term Kep. 224. 
 V. Olemcne, 58 Pa. St. 24; Baltimore, etc., E. 
 Co. V. Glenn, 28 Md. 287J. 
 
CONFLICT OF LAWS. Ill 
 
 Illustrations. 
 
 weeks only. A promissory note to pay money in twelve months would mean 
 in one year, or in twelve calendar months.' If a contract of either sort were 
 required to be enforced in a foreign country, its true interpretation must be 
 everywhere the same — that is, according to the usage in the country where 
 the contract was made. The same word, too, often has different significations 
 in different countries. Thus, the term ' usance,' which is common enough in 
 negotiable instruments, means in some countries a month, in others two or 
 more months, and in others half a month. A note payable at one usance must 
 be construed everywhere according to the meaning of the word in the country 
 where the contract is made. There are many •ther cases illustrative of the 
 same principle. A note made in England for £100 would mean £100 sterling. 
 A like note made in America would mean £100 in American currency, which is 
 one-fourth less in value. It would be monstrous to contend that on the English 
 note sued in America the less sum only ought to be recovered, and, on the other 
 hand, on the American note sued in England, that one-third more ought to be 
 recovered." ' When, however, one of the parties is a foreigner, the question 
 arises whether he knew of the local usage, and intended to accept it as part of 
 his contract.^ But if a contract to be performed in England was executed by 
 two Englishmen travelling in America, the law of the place of performance, 
 and not that of the place of contract, would govern.* Where a contract is 
 entered into by correspondence, then the usage of the place of the writer who 
 first employs the controverted terms must be followed to explain them, although 
 this was not the place where the contract was closed, because the party who 
 first introduces these terms is supposed to do so in the sense with which he is 
 familiar.* But where there is a place of performance whose language and 
 usages the parties meant to adopt, then such language and usages must prevail. 
 Thus, when money is to be paid, or goods delivered, or lands conveyed in a 
 foreign country, then the currency, weights, and measurements of such foreign 
 country are to be the standards: first, because such is presumed to be the 
 intention of the parties ; and, second, because generally there will be no other 
 currency, weights, or measurement in such country by which the contract could 
 be performed.^ So, where a contract was entered into in London for the load- 
 ing of a cargo at Trinidad, it was held that it was to be construed by the usages 
 of the port of Trinidad.' 
 
 In Star Glass Company v. Morey,^ a contract made in Boston with a manufac- 
 turer of window-glass in Philadelphia for the purchase from him of glass there 
 manufactured, or to be manufactured, and its delivery there to a carrier, referred 
 for the designation of sizes of the glass and as to the basis of prices to cards 
 issued by the manufacturer, without special reference to the Boston market. It 
 was held that if there was a difference in the local usages of the two places as 
 to the standard of measurement or the mode of cutting the glass so as to fit ' 
 
 1 Lang V. Gale, 1 Mau. & Sel. Ill ; Cockell » Whart on Confl., § 437 (citing Kosetter v. 
 V. Gray, 3 Brod. & B. 187; Leffliigwell v. Cahlman, SExch. 261; Stapleton ». Conway, 
 White, 1 Johns. Gas. 99. 3 Atk. 727; De WoU c.Johnson, 10 Wheat. 
 
 2 Story on Confl., §§ 270, 271. 823 ; Clayton v. Gregson, 5 Ad. & B. 302). 
 
 » Whart. on Confl., § 434. ' Cuthbert». Cumming, UExch. 405. And 
 
 4 Ibid. Bee Greaves v. Legg, 11 Exoh. 644. 
 
 ' Id., § 436. « 108 Mass. 670. 
 
112 ON THE PROOF NEOESSAET TO ESTABLISH THEM. 
 
 Pleading. 
 
 the corresponding sizes of sash, and no provision was made as to this in the 
 contract, the usage at Philadelphia would govern. 
 
 Where a vendee of land demands a deed with customary covenants, what is 
 customary is determined by the lex rei aitm.^ 
 
 § 64. Pleading. — A general usage or custom need not be pleaded, but may be 
 given In evidence at the trial, or judicially noticed by the court for the first ' 
 time on appeal." But the custom of a particular place ^ and local commercial 
 usages must be pleaded ; and so of a custom to excuse the non-performance of a 
 duty prescribed by law.* Wljere a local usage is set up, all the requisites of a 
 valid usage should be averred; ' but, as one who deals with brokers is presumed 
 to deal with reference to their usages, m a complaint by a broker against his 
 principal it is not necessary to allege that the latter knew of the existence of a 
 custom on which the action is founded ; « and in a suit on a writing, where cer- 
 tain Incidents are attached by usage, the usage need not be specially pleaded.' 
 Where a complaint alleges title In the plaintiff, it may be supported by evidence 
 of mining customs, even though they are not mentioned in the pleadings. A 
 usage is not sufficiently pleaded by a single averment that it has been constantly 
 and uniformly recognized and abided by in a certain city in similar cases.' In 
 an action for goods sold and delivered, evidence of a usage of trade which 
 gives the purchaser a right to revoke the contract when the article, which appears 
 to be good, is sold as good, but turns out to be rotten and nearly worthless, is 
 not admissible under an answer which does not allege that the sale has been 
 revoked.'" In New York, evidence of usage is admissible under the general 
 denial." 
 
 1 Gault V. Van ZUe, 37 Mich. 22. ' Governor o. Withers, 5 Gratt. 24; Jaok- 
 
 2 Ooyle V. Gozzler, 2 Oraneh 0. Ot. 625 ; son v. Henderson, 3 Leigh, 196. 
 Goldsmith v. Sawyer, 46 Cal. 209; Temple- * Governor «. Withers, 5 Gratt. 24. 
 
 man v. Biddle, 1 Harr. (Del.) 622; Stultz v. 6 Wallace v. Morgan, 23 Ind. 399; Datch, 
 
 Dickey, 5 Binu. 285 ; Carson v. Blazer, 2 Binn. etc., Co. v. Mooney, 12 Cal. 334. 
 
 475. As to pleading cnstoms in England, see • Whitehouse v. Moore, 13 Abb. Pr. 142. 
 
 Hawkins v. Wallis, 2 Willes, 173 ; Tewkesbury ' Lowe v. Lehman , 15 Ohio St. 179. 
 
 V. Bricknell, 1 Taun. 142 ; Morewood v. Wood, 8 Colman v. Clements, 23 Cal. 246. 
 
 4 Term Eep. 167 ; Griffin v. Blandf ord, Cowp. » Antomarchi v. EusseU, 63 Ala. 366. 
 
 62; Peter ». EendaU, 6 Bam. & Cress. 703; w Highto. Bacon, 126 Mass. 10. 
 
 Paddock v. Forrester, 3 Man. & G. 903; 3 " Miller e. Insurance Co., 1 Abb. N. 0. 470. 
 
 Scott Sr. R. 715. 
 
CHAPTEE III. 
 
 ON THEIR VALIDITY AND EFFECT IN DIFFERENT RELA- 
 TIONS AND OCCUPATIONS. 
 
 IIJ.USTRATIVE Cases : — 
 
 10. Benner v. Bank of Columbia. — Banks and banking, and negotiable 
 
 and assignable paper — Usages as to demand and notice. 
 
 11. Gordon v. Little. — Common carriers — Usages regarding their 
 
 general liability, and the meaning of terms in bills of lading. 
 
 12. Farmers and Mechanics' Bank v. Ohamplain Transportation Com- 
 
 pany. — Same — Usages excusing notice of arrival of goods. 
 
 13. Bulkley v. Derby Fishing Company. — Corporations — Usages con- 
 
 trary to charter powers. 
 
 14. Harper v. City Insurance Company. — Fire insurance — Customary 
 
 use of prohibited articles. 
 
 15. Walsh V. Homer. — Marine insurance — Usage may excuse a de- 
 
 viation. 
 
 16. Wigglesworth v. Dallison. — Landlord and tenant — Custom as to 
 
 waygoing crop. 
 
 17. Holcroft V. Barber. — Master and servant — Usage as regulating 
 
 terra of service. 
 
 18. PTariBS' V. G^i-adj;. — Partnership — Powers of partner maybe 
 
 enlarged by usage. 
 
 19. Coodenow v. Tyler. — Principal and agent — Usage govex'ns 
 
 agents' powers. 
 
 20. Jones v. Bowden. — Vendor and purchaser — Usage as to war- 
 
 ranty. 
 
 21. Conner v. Bobinson. — Same — Usage as to measurement and 
 
 weight. 
 
 22. Esterly v. Cole. — Same — Interest charged by custom. 
 
 23. Priestley w Pratt. — Same — Custom as affecting cliange of pos- 
 
 session. 
 
 Notes : I. Banks and Banking, and Negotiable and Assignable Paper. 
 § 65. Bank officers — -Powers of, as affected by usage. 
 
 66. Same — Power to certify checks. 
 
 67. Same — Proper officer to receive payments or deposits. 
 
 68. Banks — Negotiable paper — Usage as to demand and notice. 
 
 69. Same — Demand always necessary. 
 
 70. Same — Discordant decisions. 
 
 71. Usage and days of grace. 
 
 72. Duties of bank as collecting agent. 
 
 73. Payment by bank must be in good money — Usage. 
 
 « (113) 
 
114 IN DirFBRENT RELATIONS AND OCCaPATIONS. 
 
 Contents of Chapter. 
 
 NOTBS: §74. Same — Payment of forged check. 
 
 75. Note voluntarily cut in two — Usage to pay only half. 
 
 76. Bank — Bona fide holder. 
 
 i7. Past-due negotiable paper — Equities. 
 
 II. Common Carriers. 
 § 78. Liability of carriers created by custom. 
 
 79. Delivery of goods to carrier a ; controlled by usage. 
 
 80. Delivery of baggage by passenger. 
 
 81. Usage must be strictly followed. 
 
 82. Complete delivery not altered by usage. 
 
 83. Liability for property while in transit. 
 
 84. Stowage of goods as affected by custom. 
 
 85. Delivery by carrier as controlled by custom. 
 
 86. Delivery by carrier — Continued. 
 
 87. Notice required by law, but waived by usage. 
 
 88. Cases where the alleged custom did not control. 
 
 89. Cannot prevail against express directions. 
 
 90. Delivery on prohibited days. 
 
 91. Means for delivery. 
 
 92. Usage may enlarge carrier's duty. 
 
 93. Complete delivery not affected by usage. 
 
 94. Express companies and delivei'y by. 
 
 95. Same — Cases where usage did not control. 
 
 96. Same— Usage permitted to relax their obligations. 
 
 97. Connecting carriers. 
 
 98. The carrier's charges. 
 
 99. Power of carrier to sell goods in his charge. 
 
 100. The carrier's lien as affected by usage. 
 
 101. Bills of lading and restrictive contracts. 
 
 102. Statutory exemptions cannot be waived by usage. 
 
 III. Corporations. 
 
 § 103. The ancient doctrines concerning corporate capacity and assent 
 as affected by usage. 
 
 104. OfBcers and agents of corporations. 
 
 105. Contracts not according to mode prescribed — Usage. 
 
 106. Lien of corporation on shares of stockholder. 
 
 107. Transfer of stock— Notice. 
 
 IV. Insurance. 
 
 § 108. Usages in the law of insurance. 
 
 109. Mr. Arnould's four rules. 
 
 110. Every general usage prima fade part of the policy — Marine 
 
 insurance. 
 
 111. Commencement and end of risk. 
 
 112. Deviation. 
 
 113. General average. 
 
 114. Extent of the policy. 
 
 115. Apportionment of premium — Adjustment. 
 
IN DIFFKRENT KELATIONS AND OCCUPATIONS. 116 
 
 Contents of Chapter. 
 
 Notes : § 116. Other cases. 
 
 117. Every general usage prima facie paxt ot the policy — Fire insur- 
 
 ance. 
 
 118. Customary incidents of the business insured. 
 
 119. Increase of risk. 
 
 120. Changes in adjoining premises. 
 
 121. Amount of loss. 
 
 122. Payment of losses — Mutual companies. 
 
 123. Reinsurance. 
 
 124. Life insurance — Payment of premiums — Policy. 
 
 125. Other cases. 
 
 V. Landlord and Tenant. 
 § 126. Customs in the law of landlord and tenant. 
 
 127. As to the " waygoing " crop. 
 
 128. Other customs. 
 
 129. As to term of tenancy. 
 
 130. Explaining terms in lease. 
 
 131. As to fixtures. 
 
 132. Not admissible to contradict lease. 
 
 133. When lease not inconsistent with custom. 
 
 VI. Master and Servant — Bmploybr and Employbb. 
 § 134. As to terms or conditions of service. 
 
 135. As to the proper performance of a service. 
 
 136. As to wages and compensation. 
 
 137. Contract not wholly performed — Quantum meruit. 
 
 VII. Partnership. 
 
 § 138. Powers of partners may depend on custom. 
 
 139. Usage as to name of firm. 
 
 140. Common report cannot prove a partnership. 
 
 141. But usage may be controlling as to third persons. 
 
 yill. Principal and Agent. 
 
 § 142. Agency must be executed in accordance with usage. 
 
 143. Authority of agent. 
 
 144. Usages of the stock exchange. 
 
 145. Delegation of agent's authority. 
 
 146. Power to sell on credit. 
 
 147. Power to pledge goods. 
 
 148. Insurance of goods in hands of agent. 
 
 149. Payment to agent. 
 
 150. Payment — Set-off . 
 
 151. The agent's compensation. 
 
 152. The agent's compensation, continued — The rules of law as to, 
 
 cannot be overthrown by usage. 
 
 153. Usage cannot excuse a disregard of instructions. 
 
 154. Liability of principal and agent on contracts. 
 
116 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Renuer v. Bank of Columbia. 
 
 Notes: §155. Attorney and client. 
 
 IX. Vendor and Purchaser. 
 
 156. Usages of trade affecting sales. 
 
 157. Terms of sale — Price — Credit. 
 
 158. The rule CMveat emptor — Warranties on sales. 
 169. Warranty of goodness — Continued. 
 
 160. Warranty — Sale by sample. 
 
 161. Warranty — Sales by manufacturers. 
 
 162. Pledgeor and pledgee. 
 
 163. Sales by auction. 
 
 164. Rescission of contract by buyer. 
 
 165. Delivery of goods — Passing of title. 
 
 166. Payment. 
 
 167. Interest — When allowed by custom. 
 
 X. Miscellaneous. 
 
 § 168. The question of negligence as affected by custom. 
 
 169. Same — As affecting the duties of common carriers. 
 
 170. Same — As affecting the question of diligence in other bailments. 
 
 171. Same — As affecting the contributory negligence of a servant. 
 
 172. Customs to excuse negligence rejected. 
 
 173. Same — To show a nuisance. 
 
 174. Frauds. 
 
 175. Trespass. 
 
 176. Use of watercourses. 
 
 177. Offices and officers. 
 
 178. Crimes. 
 
 10. banks and banking, and negotiable and assignable 
 paper— usages as to demand and notice 
 
 Eenner v. Bank of Columbia.* 
 
 In the Supreme Court of the United States, FehrvMry Term, 1824. 
 
 ■» 
 
 Hon. John Marshall, Chief Justice. 
 " BusHROD Washington, i 
 " William Johnson, 
 " Thomas Todd, 
 " Gabriel Duval, 
 " Joseph Story, , 
 " Smith Thompson, 
 I 
 A custom on the part of all the banks of a particular place to demand payment and give 
 notice to indoi-sers of negotiable paper on tlie fourth day of grace is binding ou an 
 indorser, 11 known to him. 
 
 * Reported 9 Wheat. 582. 
 
 - Associate .Tustices. 
 
BANKS AND BANKIXG. 117 
 
 Illustrative Cases. 
 
 This cause was argued by Webster and Jones for the plaintiff in error, 
 and Key for the defendants in error. 
 
 Thompson, J., delivered the opinion of the court. 
 
 This case comes up on a writ of error to the Circuit Court of the 
 District of Columbia; and by the record it appears that the action 
 in the court below was prosecuted against Renner, the plaintiff in error, 
 as indorser of a promissory note drawn by James Foyles and discounted 
 at the Bank of Columbia. The note bears date on the ninth day of 
 January, 1817, for $4,600, and is payable sixty days after date. In 
 the declaration it is averred that demand of payment of the maker 
 was made on the fourteenth day of March, which was on the fourth 
 day after the expiration of the sixty days which the note had to run. 
 
 Several questions arising out of the record have been presented for 
 the consideration of the court. The principal one, however, is that 
 whjch relates to -the time of demand of payment of the maker of the 
 note, and grows out of a biU of exceptions taken upon the trial. This 
 has been pressed upon the court as a question of great importance, and 
 the decision of which, in its application to the concerns of the bank, will 
 have a very wide and extensive effect. 
 
 We shall proceed to the consideration of this point in the first place, 
 leaving the others, which are of minor importance, to be noticed here- 
 after. 
 
 The testimony given at the trial was for the purpose of showing that 
 the Bank of Columbia had from its first establishment, in 1793, adopted 
 the practice of demanding the payment of notes discounted by it, on the 
 fourth day after the time limited for the payment thereof, according to 
 the express terms of the note, and that such was the universal custom of 
 all the banks in Washington and Georgetown ; that this custom was weU 
 known and understood by the defendant when he indorsed the note in 
 question. After this testimony had been received, without objection, 
 the counsel for the defendant below called upon the court to instruct 
 the jury that, upon the evidence so given by the plaintiffs of a demand 
 upon the maker of the note on the fourth day after the time limited by 
 the note for the payment, the defendant was not liable on his indorse- 
 ment; which instruction the court refused to give, and a bill of 
 exceptions was thereupon taken. 
 
 This court must, therefore, assume as established facts (and, looking 
 at the evidence before the jury, no doubt could be entertained on the 
 subject) that the custom of the Bank of Columbia, and all the other 
 banks in Washington and Georgetown, from their first institution, had 
 been to demand payment of notes due them, on the foui-th day after 
 
118 IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Renner v. Bank of Columbia. 
 
 the time limited therein, diid that this custom was known and well 
 understood by the defendant, Renner, when he indorsed the note in 
 question ; and, it may be added, with full knowledge and expectation 
 that this note was to be dealt with in the same way, for it was a renewal 
 of a discount, continued for a considerable time before, on other notes 
 similarly drawn and indorsed, some of which had been demanded in like 
 manner and protested, and afterwards paid and taken up by himself. 
 Under such circumstances, it would seem that nothing short of some 
 positive and unbending principle of law could shield the defendant from 
 responsibility. But, so far from trenching upon any such principle, we 
 think his liability completely established by well-settled rules of law. 
 
 It seems to be assumed as the settled law of promissory notes, that in 
 order to charge an indorser, demand of the maker must be made on the 
 third day after that limited in the note, and that this is so stubborn a 
 rule that parties are not permitted to violate it even by their mutual 
 agreement. 
 
 We admit in the most unqualified manner that the usage of making 
 the demand on the third day of grace has become so general that 
 courts of justice will notice it ex officio, and in the absence of any 
 proof to the contrary, will presume that such was the understanding of 
 all parties to a note when they put their names upon it. But that this 
 rule has any attributes so inviolable as not to be touched by the parties 
 to negotiable paper, cannot be admitted. It has its origin in custom, 
 and that custom too comparatively of recent date, and is not one of 
 those to the contrary of which the memory of man runneth not, and 
 which contributed to make up the common-law code, which is so justly 
 venerated. So far from this, that the allowance of any days of grace 
 is in derogation of the common-law rule applicable to other contracts. 
 They are emphatically the mere creatures of usage, varying in different 
 countries to suit the views and convenience of men in business, originally 
 gratuitous, and not binding on the holder. The common law would re- 
 quire payment on the last day limited by the contract, and would also 
 give to the maker the whole of that day. It is a settled principle of the 
 common law, ^applicable to all contracts, that a party has until the last 
 day limited by his agreement to perform his engagement, and even until 
 the last hour of the day. The common law knows of no fractions of a 
 day; custom, however, — and that introduced, too, principally by 
 banlis, -— has limited the day to a few hours of business. But this, and 
 whatever other rules have been adopted by consent and merely for the 
 convenience of commercial men, are departures from the common-law 
 doctrine. When, therefore, the allowance of only thi-ee days of grace is 
 
BANKS AND BANKING. 119 
 
 Illustrative Cases. 
 
 said to be the law of the contract by bills of exchange and promissory 
 notes, nothing more can be intended than that custom has so long sanc- 
 tioned this rule that all dealers in paper of this description are under- 
 stood to govern themselves by it. The law of the contract, properly 
 speaking, is to pay when due ; and that time is to be ascertained either 
 from the contract per se, or that taken in connection with some known 
 custom, which the parties are presumed to have tacitly consented should 
 be made a part of the contract. And it is in this view only that three 
 days of grace are allowed where that custom is recognized as the rule ; 
 for a note which upon its face has sixty days to run is in truth and in 
 fact a contract for sixty-three days, and interest is taken for that time. 
 And how is it ascertained that it is a note for sixty-three days but by 
 looking out of the contract and flnding what was the understanding of 
 the parties? Where the custom has existed for a long time, and has 
 become general, courts of justice, as before observed, will notice it ex 
 officio; and where it has not, it is matter of proof. If this is not the 
 light in which these transactions are to be considered, aU banks are 
 chargeable with usury ; for all take interest beyond what is allowed by 
 law, if time is to be determined by the note itself. The general role of 
 law is that demand of payment must be made of the maker when the ■ 
 note falls due, and that time, as now settled, is on the last day of 
 grace; and even this rule is of recent date, for in the King's Bench in 
 England, as late as the year 1791, about coeval with the institution of 
 this bank and the custom established by it, we find Lord KEsrioif i and 
 Mr. Justice Buller differing on this very point, the former holdiijig 
 that, by analogy to other contracts, the acceptor of a bUl of exchange 
 had the whole ' of the third day of grace to pay the biU, and that a 
 demand on the fourth day was not too late. Mr. Justice Bollek 
 thought the demand ought to be made on the third day of grace ; that 
 the nature of the acceptor's undertaking was to pay the bill on demand 
 on any part of the third day of grace ; and he inferred this from its 
 having been, as he said, the practice to make the demand on that day. 
 If it was a doubtful question in England so late as the year 1791 
 whether the demand ought to be made on the third day of grace or the 
 day after, this bank is not chargeable with any culpable innovation upon 
 long-established rules of law or usage by adopting the practice of 
 maldng the demand on the fourth day. 
 
 It is said, however, that the effect of this testimony is to alter and 
 vary by parol evidence the written contract of the parties. If this is 
 the light in which it is to be considered, there can be no doiibt that it 
 
 > Lettley v. Mills, 4 Term Rep. 170. 
 
120 IN DIFFERKNT RELATIONS AND OCCUPATIONS. 
 
 Rentier o. Bank of Columbia. 
 
 ought to be laid entirely out of view ; for there is no rule of law better 
 settled, or more salutary in its application to contracts, than that which 
 precludes the admission of parol evidence to contradict or substantially 
 vary the legal import of a written agreement. Evidence of usage or 
 custom is, however, never considered of this character, but is received 
 for the purpose of ascertaining the sense and understanding of par- 
 ties by their contracts, which are made with reference to such usage 
 or custom ; for the custom then becomes a part of the contract, and 
 may not improperly be considered the law of the contract, and it 
 rests upon the same principle as the doctrine of the lex loci. AH. con- 
 tracts are to be governed by the law of the place where they are to be 
 performed ; and this law may be, and usually is, proved as matter of 
 fact. The rule is adopted for the purpose of carrying into effect the 
 intention and understanding of the parties. That the note in ques- 
 tion was to be paid at the Bank of Columbia, and to be governed by 
 the regulations and custom of the institution, and so understood by all 
 parties, cannot admit of a doubt. 
 
 It would be a waste of time to go very much at large into an exami- 
 nation of the various usages and customs that are admitted in evidence 
 and recognized in courts of justice, both in England aijd in this coun- 
 try, in almost eveiy branch of business, and especially in commercial 
 transactions, for the purpose of ascertaining the meaning and inter- 
 pretation of contracts. A few only will be noticed that are somewhat 
 analogous to the present case. 
 
 In the case of Gutter v. Powell, ' where was brought under considera- 
 tion the legal effect of a promissofy note given to the mate of a ship for 
 a certain sum of money, provided he proceeded on her voyage and con- 
 tinued to do duty to the port of destination. The legal construction to 
 be given to this note was clear, and so considered by the court, that 
 nothing was due unless the mate continued to do duty to the port of 
 destination. He having died, however, on the voyage, the court 
 directed an inquiry into the usage of merchants in such cases, declaring 
 that if it sanctioned an allowance for the time the service was performed, 
 the plaintiff should recover according to such usage. 
 
 No intimation is here given that such proof would be repugnant to the 
 contract, although it was against the legal import of the note if con- 
 strued without reference to the usage ; and although the usage related 
 to trade, it was very limited in its application. 
 
 So, in Noble v. Kennoway,^ usage of trade was admitted in evidence 
 to explain the understanding of parties in a policy of insurance, although 
 
 ' 6 Term Rep. 320. s 2 Dong. 510. 
 
BANKS AND BANKING. 121 
 
 Dlustrative Cases. 
 
 the usage had not existed three years.- Lord Mansfield said the usage 
 could only be known by proof, and must be tried by a jury ; that under- 
 writers must be presumed to be acquainted with the practice of the 
 trade they insure, whether recently established or not. If it were 
 necessary, cases might be multiplied almost without end showing the 
 same principle and same recognition of local and particular usages in 
 almost every branch of business. 
 
 We have also, in the State courts in our country, the decisions of 
 very enlightened judges adopting the same principles and governing 
 themselves by the same rules, and in many cases not unlike the one 
 before us. 
 
 In JoTies V. Fales,^ the same doctrine as to usages of banks was fully 
 sanctioned ; and although that particular usage might have been found 
 in practice inconvenient, and not to meet public approbation, yet the 
 principle which governed the decision of the court is not thereby 
 weakened, namely : that the usage with which the defendant was conver- 
 sant was proper evidence to be submitted to a jury, to infer from it 
 the agreement of the party. And although, as suggested at the bar, 
 this custom was altered by the banks, we do not find the courts of jus- 
 tice in that State attempting to control it in its application to notes 
 made in reference to the usage. 
 
 The doctrine of this case was again fuUy recognized in Lincoln and 
 Kewiebeck Bank v. Page,^ where it was held that, bank usages estab- 
 lished respecting demands on makers of promissory notes and notices 
 to indorsers being known to dealers in the banks, they were bound by 
 them, and that the usage was proper evidence to be submitted to a jury. 
 These cases are not referred to for the purpose of approving the par- 
 ticular usage, but to show that evidence of such usage was never consid- 
 ered as contradicting the written contract. 
 
 jffalsey v. Brown ^ is a very strong case on this subject. The question 
 was as to the liability of ship-owners for the loss of money taken on 
 freight by the captain. The defence set up was that the master, 
 according to established custom, was permitted to take money on 
 freight as a perquisite to himself, and the owners discharged from 
 responsibility; and the question directly presented to the court was 
 whether a particular custom or usage could be given in evidence to 
 control the general law. And the court says it is a principle that the 
 general common-law may be, and in many instances is, controlled by 
 special custom. So, the general commercial law may by the same 
 reason be controlled by a special local usage, so far as that usage 
 
 ' i Maes. 252. 2 9 Mass. 155. ' 3 Day, 346. 
 
122 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Eenner v. Bank of Columbia. 
 
 extends, wMcli will operate upon all contracts of this nature made in 
 view of, or with reference to such usage. 
 
 In Smith v. Wright^ this general principle is laid down: The true 
 test of a commercial usage is its having existed long enough to have 
 become generally known, and to warrant a presumption that contracts 
 are made in reference to it. 
 
 In the case of Bank of Utica v. Smith,^ a note payable at the 
 Mechanics' Bank in New York was presented and payment demanded 
 fifteen minutes after bank hours ; and this was held sufficient, it appear- 
 ing that although it was a quarter of an hour after the usual time of 
 closing the bank as to other business, it was within bank hours, it 
 appearing that, according to the general course of doing business at this 
 bank, these fifteen minutes were the usual and accustomed time for 
 these presentments, and of this course of business the defendant ought 
 to have informed himself. 
 
 It is unnecessary to pursue this subject further by particular refer- 
 ence to decisions in the State courts. The same doctrine as to the 
 effect of particular usages in controlling the general law wiU be found to 
 accompany the administration of justice wherever the subject is brought 
 under consideration. Whether these usages are in all instances wise 
 and beneficial may perhaps be questionable, but where they do exist 
 they are considered as regulating and controlling contracts made under 
 and in reference thereto. 
 
 The same principle is recognized by this court in the case of Yeaton 
 v. Bank of Alexandria.^ The chief justice, in spealdng of the effect of 
 usage upon the legal obligation of parties, obsen^es, if the case showed 
 that such was the usage of the bank and such the undei-standing under 
 which notes were discounted, this court is not prepared to say that the 
 undertaking created by the indorsement would not be so fashioned as to 
 give effect to the real intention of the parties. 
 
 These cases are sufficient to show in the most satisfactory manner the 
 light in which courts of justice consider contracts made in reference to 
 any particular usage, and the effect that such usage is to have upon 
 them. And no good reason is perceived why these principles should 
 not be applied to the case before us. The custom under which this 
 bank has transacted business for five and twenty years, of demanding 
 payment of the drawers of notes on the fourth instead of the third day 
 after the time limited for payment, is not unreasonable or repugnant to 
 any principles of general policy. It does not stand alone, but is in 
 accordance with the usage of every other bank in Washington and 
 
 ' 1 Oaines, 43. " 18 Johns. 230. s 6 Ciaiich, 49. 
 
CAERIEK AND CUSTOMER. 123 
 
 Illustrative Cases. 
 
 Georgetown. The defendant indorsed the note in question with full 
 knowledge of the custom. A demand on the fourth day is in perfect 
 harmony with the principles of the common law, if applied to the con- 
 tract, the maker having the whole of the third day to pay his note, and 
 not being in default untU the fourth. The inconveniences suggested on 
 the argument, growing out of a usage here differing from that which is 
 in practice in other places on this subject, are not of great public con- 
 cern. If they exist, they affect the banks and their customers only. 
 And if felt to the prejudice of either the one or the other, we may rest 
 assured it would be altered. Their private interest is a sure guaranty 
 for this. 
 
 But, admitting the practice to be inconvenient, and that a uniformity 
 in this respect with other parts of the country would be desirable, the 
 remedy is not in the hands of courts of justice, whose business it is to 
 judge of contracts as made by parties themselves, and not to prescribe 
 the manner in which they shall be made. 
 
 We are, accordingly, of opinion that the court below did not err in 
 refusing to instruct the jury that the demand upon the maker of the 
 note on the fourth day after the time limited for payment thereof dis- 
 charged the defendant from liability on his indorsement. 
 
 Judgment affirmed. 
 
 11. common carriers — usages regarding their general lia- 
 bility, and the meaning of terms m bills of lading. 
 
 Gordon v. Little.* 
 
 In the Supreme Gourt of Pennsylvania, September, 1822. 
 
 Hon. William Tilghman, Chief Justice. 
 " John B. Gibson, 
 
 kV 
 
 " Thomas Duncan, ' '^'''^'''''- 
 
 1. The common-law liability of common carriers by water may be altered by usage. 
 
 2. The constraction of the words, " inevitable dangers of the river," in a bill ol lading of 
 
 goods carried on an inland river, may be arrived at by evidence of custom and usage. 
 
 Error to the Common Pleas, in an action brought by Little against 
 Gdidou and Walker. 
 The plaintiff shipped certain goods on a keel-boat owned by the 
 
 » Reported 8 Serg & R. 533 ; 11 Am. Dec. 632. 
 
124 IN DUTERENT llELATIOJiS AND OCUUPATIOJS'8. 
 
 Gordon v. Little. 
 
 defendants, from Pittsburg to Hopltinsville, Kentucky, at a certain 
 freight. The defendants' agents signed a bill of lading, promising "to 
 deliver the goods in good order and condition, and without delay, tte 
 inevitable dangers of the river only excepted," etc. The day after the 
 goods were taken on board, the boat struck against a sunken log while 
 lying at the landing at Pittsburg, and sank, damaging the plaintiff's 
 goods, and this action was brought to recover for said damage. The 
 declaration contained two counts : one on the special contract, and the 
 other charging the defendants as common carriers. 
 
 The defendants offered evidence of a general usage or custom in rela- 
 tion to the liability of boatmen, amounting to an implied contract, but 
 the court rejected it, except so far as such usage served to exjilain the 
 common and commercial meaning of the words, " the inevitable dangers 
 of the river," in the biU of lading. Exceptions were duly tendered and 
 allowed to the rulings of the court in rejecting the evidence above 
 mentioned, offered by the defendants. 
 
 The president of the court delivered an elaborate charge, stating the 
 principles of law involved in the case and commenting upon the facts, 
 but at the same time informing the jury that it was their province to 
 judge of the facts. The whole charge was excepted to ; but as the 
 court did not pass upon the points contained in it, it is not deemed 
 necessary to insert it. Verdict and judgment for the plaintiff. 
 
 Baldwin and Boss, for the plaintiffs in error, cited as to the evidence 
 of a usage, Carson v. Blazer ' and Stultz v. Dickey.^ 
 
 Biddie, Shaler, and Forward, for the defendant in error, cited as to 
 the evidence of usage, Stoever v. Whitman.^ 
 
 TiLGHMAN, C. J. — Several exceptions wei-e taken to the court's 
 opinion on points of evidence during the trial of this cause, and an 
 exception was also taken to the charge delivered to the jury. 
 
 The third exception was to the rejection of evidence offered by the 
 defendants of the custom or usage which had prevailed at Pittsburg, 
 and in the Western country in general, touching the liability of those ' 
 persons who carried the goods of others for hire on the waters of the 
 Ohio and Mississippi. The object of the defendants was to prove a 
 custom by which the carriers were liable for losses only in case of neg- 
 ligence. The court rejected the evidence because in this case there 
 was a wi-itten contract ; but they were willing to admit, and did admit, 
 evidence of usage or custom ascertaining the consti-uction of the words, 
 "inevitable dangers of the river," which had been introduced into this 
 bill of lading. 
 
 ' 2 Binn. 475 ; 4 Am. Deo. 463. 2 5 Binn. 285 ; 6 Am. Dec. 411. 8 6 Binn. 41G. 
 
CAREIEK AND CUSTOMER. 125 
 
 Illustrative Cases. 
 
 If the case had rested solely on the written contract, there would 
 have been much to say in favor of the decision of the court, because, 
 be the common law what it may, the parties have a right to alter or 
 modify it by special contract ; and when they have done so, the ques- 
 tion is. What is the construction of the contract? In mercantile cases 
 the usage of trade is often called in to explain words of doubtful import, 
 although it would not be admitted to contradict the intent of the con- 
 tract, expressed so clearly as to admit of no doubt. "Where evidence of 
 usage is admitted, the witnesses are confined to the fact of usage, and 
 are not allowed to give their opinion. This is the law established by 
 the best authority. I refer to the f oUowin'g cases : ^ Winthrop v. Union 
 Insurance Oompany,^ Buan v. Gardner,^ and Frith v. Barker.* That 
 the court was right in admitting evidence of usage to ascertain the 
 construction of the written contract in the present case, I am clear. 
 " The unavoidable dangers of the river " are not more definite expres- 
 sions than " the perils of the sea," the words usually inserted in bills 
 of lading on maritime voyages. And in such bills of lading evidence 
 of usage has been received. So long ago as the twenty-fourth year of 
 Charles I. a question arose in the case of Pickering v. Barkley,^ whether 
 a taking by pirates was a peril of the sea. The case came before the 
 court on a demurrer. Merchants and experienced mariners were exam- 
 ined, from whose evidence the court was satisfied that the taking was 
 generally understood to be within the words of the contract, and 
 decided accordingly. But, on the hearing of the trial of the case 
 before us, it probably escaped the court that the question was not con- 
 fined to the written contract, because there was a count in the declara- 
 tion in which the defendants were charged as common carriers. If the 
 plaintiff had failed in his count on the special contract, he might have 
 recovered against the defendants as common carriers. It was incum- 
 bent on the defendants, therefore, to satisfy the court and jury that 
 they were not liable as common carriers ; and this they could not do 
 but by showing that the strict common-law rule had not been received 
 in the Western country. Strict, indeed, is the rule of the common 
 law, for the carrier is liable for every accident not arising from the act 
 of God or a public enemy. It was not always so. 
 
 Until England became a commercial country, the law of carriers was 
 conformable to the general principles of bailment ; that is to say, the 
 carrier was liable only where he had not used ordinary care and vigi- 
 
 1 Abb. on Ship.,pt, 3, chap. 4, § 2; 2 Marsh. a 1 Wash. 0. Ct. 145 
 
 Dec. 207. * 2 Johns. ,327 ; 2 Marsh. Deo. 208. 
 
 2 2 Wash.O. Ot. 7. 5 1 sty. 132. 
 
126 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Gordon v. Little. 
 
 lance. It was so understood in the reign of Henry VIII. * But when 
 commerce became extended, under the flourishing reign of Elizabeth, it 
 was thought expedient to adopt a stricter rule, in order to guard against 
 frauds and collusions easily practised but hard to prove. In England 
 'the rule has been rigidly observed, for the sake of maintaining what the 
 courts have considered as a public convenience, though not without 
 now and then a struggle, in cases of extreme hardship on the carrier, 
 where the loss has been by fire or robbery. The law as held by modern 
 judges will be found in Forward v. Pittard,^ Hyde v. Trent and Mersey 
 Navigation Company,^ and Elliot v. Rossell.* But although the courts 
 have not relaxed, yet the rule has been considered by the public as more 
 severe in some instances — as, against carriers by water — than was con- 
 sistent with justice. And accordingly, about the year 1795, the usual 
 form of charter-party was altered in England, and now stands as fol- 
 lows: "The act of God, the king's enemies, fire, and all and every 
 other dangers and accidents of the seas, rivers, and navigation, of 
 whatever nature and kind soever, excepted." 
 
 The Parliament has also interfered in favor of carriers by water, for hy 
 statute ^ they are relieved from liability in case of lire on board any ship 
 or vessel; neither are they liable for " gold, silver, diamonds, watches, 
 or precious stones lost in a ship or vessel by robbery, embezzlement, 
 making away with, or secreting, unless inserted in the bill of lading, or 
 notice given in writing, stating the articles and their value." An attempt 
 was afterwards made to carry the thing farther, and to reduce the liar 
 bUity of carriers by water to losses which happened through the fault 
 or negligence of the master or mariners. A bill to this effect passed 
 the House of Commons, but was rejected by the Lords.^ This sketch 
 of the English law will be important when we come to consider the pro- 
 priety of admitting evidence by the custom of the "Western countrjr. 
 With regard to carriers by land, the law has been here as in England. 
 Public convenience requires it, nor have I heard a suggestion of any 
 doubt on the subject. But with regard to carriers by water, the law 
 has not been considered as settled. 
 
 There is said, indeed, to have been a decision at Nisi Prius by Chief 
 Justice McKean and Judge Yeates that cai-riers on the river Susque- 
 hanna were liable as common carriers. But we have no report of that 
 case, and it probably was decided without much argument or con- 
 sideration. The point came before this court in Dean v. SwoopJ The 
 
 ■ Jones on Bail. 102. 103. 6 26 George III., o. 86; Abb. on Ship., pt. 
 
 1 Term Rep. 27. 3, chap. 4, § 8. 
 
 ' 5 Term Rep. 389. e see Abb. on Ship., pt. 3, ohap. 4, § 1. 
 
 ■• 10 Johns. 9 ; 6 Am. Dec. 306. i 2 Binn. 72. 
 
CARRIEK AND CUSTOMER. 127 
 
 Illustrative Cases. 
 
 ( 
 
 court perceived its importance, and declined giving an opinion of it, as 
 it was unnecessary, the cause admitting of a decision on another point. 
 The navigation of the Susquehanna and the Westerly waters is quite a 
 new thing. Its origin may be dated posterior to our independence. 
 Prior to that it did not deserve the name of navigation, nor could 
 there have been any custom about it. Many parts of the English com- 
 mon law have been rejected as improper for the condition of this 
 Commonwealth. To what extent that common law has been reserved 
 in the navigation of our rivers is, in my opinion, fairly open to investi- 
 gation. It is to be understood, however, that it lies upon him who sets 
 up a usage departing from the common law to prove it to the entire 
 satisfaction of the court and jury. It was remarked by this court, in 
 the case of Carson v. Blazer,^ that our rivers were so different from 
 those of England that the same laws respecting the property fisheries 
 would not suit the two countries, nor had the English law on that sub- 
 ject been received in Pennsylvania. 
 
 I will not say that the English law of carriers by water is inapplicable 
 to this country ; but whether it has been adopted in its full extent is a 
 fact worthy of investigation. Unless a custom or usage is most clearly 
 established to the contrary, I should think that the carrier was liable for 
 every accident which skill, care, and diligence could have prevented. 
 What may be called the act of God has sometimes occasioned differ- 
 ence of sentiment. But the best opinion is that the act of God is some- 
 thing in which the act of man has no part — such as lightning, tempest, 
 wind, etc. In our rivers, which are interspersed with falls and rapids, a 
 sudden flow, not amounting to storm or tempest, might have such an 
 effect as to defeat all human skill and diligence, and should be considered 
 as the act of God. There is great reason why the carrier should be 
 liable for all kinds of embezzlement, stealing, and robbery, except by the 
 public enemy ; for in these eases eoUusion may be so artfully concealed 
 that it would be almost impossible to detect it. But we need Hot take 
 such large ground for the decision of the question before us, which is 
 whether, on the count against the defendants as common carriers, they 
 might not be permitted to prove a usage different from the common 
 law? And for the reasons already given, as well as many others which 
 might be given, I am well satisfied that the evidence was admissible. 
 On the written contract it would be premature to make any rejaarks, 
 because the court admitted evidence of usage to explain its construc- 
 tion, and there is no question on that point before us. 
 
 Gibson, J. — As to the admissibility of evidence of a custom pecu- 
 
 1 2 Binn. 475 ; 4 Am. Dec. 46il. 
 
128 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Gordon v. Little. 
 
 t 
 
 liar to the carrying business of the Ohio. It is settled that a common 
 carrier is answerable for every degree of negligence between the deter- 
 minate point of^ ordinary diligence and that where the least imaginable 
 shade of neghgence begins. He is, in effect, an insurer against all 
 perils except those which are produced by a sudden commotion or 
 change in the state of the elements, and which no human skill can avoid 
 or human force overcome, and those which arise from the hostile array 
 of a foreign force. The difference between a carrier and any other 
 bailee for hire is in all cases founded on maxims of public policy and 
 public convenience, as much as it is in the particular instance of liability 
 for a loss by robbery, which Sir William Jones considers an exception 
 to the general rule of responsibility, rather thau a part of the rule itself. 
 The law i-aises a conclusive presumption against the carrier not only in 
 the case of robbery, lest a confederacy should be formed between him 
 and thieves, without a possibility of detection, but in all cases except 
 those just now mentioned, because it prevents the necessity of proof of 
 facts impossible to be made in one case in a thousand by the owner of 
 the goods. The carrier alone can give anj^ account of the loss and its 
 attendant circumstances. In some cases his servants might be called ; 
 but, necessarily participating in whatever negligence there may have 
 been, and being answerable to their employer, to expect them to be 
 impartial witnesses would be against reason and all experience. The 
 law, therefore, does not stop to compute the quantum of care that has 
 been bestowed ; it declares the carrier liable for the slightest negligence, 
 and assumes what is true in fact : that no loss can happen without some 
 degree of it, unless in the excepted cases ah-eady mentioned, and it 
 imposes on him the burden of proving that the loss proceeded from a 
 peril within one of the exceptions. He must, therefore, either stipulate 
 for a premium adequate to the risk, or restrain his responsibility by a 
 special acceptance of the goods ; if he has done neither, the acceptance 
 must be taken to have been in reference to his duties at the common 
 law. 
 
 I have thus stated the common-law responsibility of a carrier, together 
 with the reason for it, in order to show that no one can refuse his 
 assent to the wisdom and salutary tendency of its policy in the abstract. 
 The only question is as to its applicability to the carrying business of 
 the Ohio in particular. For I take it to be indisputable that the 
 common-law measure of responsibility, as a general rule, is as applicable 
 to a carrier by water from place to place within the State, or from a 
 place within the State to another in a neighboring State, as it is to a 
 carrier from a place beyond the sea, or by land ; and it is expressly held 
 
CARRIER AND CUSTOMER. 1)0) 
 
 Illustrative Cases. 
 
 so by the most respectable courts of our sister States, as is shown by 
 Elliot V. Bossell,^ where the decisions in the different States are cited. 
 And in Bell v. Reed ^ the principle seems to have been conceded by this 
 •court ; and in Lea v. Stroud it was expressly so. This, although a Nisi 
 Prius decision, is undoubtedly of weight to show the view that was 
 taken of the law as respects the Susquehanna. The question, then, is 
 as to the applicability of the common-law rule with respect to the Ohio. 
 Now, what is there to distinguish that river from the other -rivers of the 
 State? Its navigation is not more perilous ; and if it were, the carriers 
 might exact a compensation adequate to the risk; the nature of the 
 business, the facility to practise fraud without detection, and the 
 impossibility of showing want of due diligence are the same. But the 
 common law is supposed to be altered with respect to the river by a 
 custom. Before we examine that matter, let us ascertain what is the 
 law with regard to customs. 
 
 These are: 1. General, which constitute the universal law of the 
 country; or, in other words, the common law. 2. Particular, which 
 operate in and are confined to particular districts, and in England. 3. 
 Particular laws, which are recognized by particular courts of general 
 jurisdiction; or, in other words, the civil and canon law, which with 
 us are so blended with the common law as to have become part of it.^ 
 Now, general customs are never proved before the jury, but are deter- 
 mined by the judges.* In Consequa v. Willings,^ it was held by the 
 Circuit Court of the United States for the District of Pennsylvania 
 that where the common law is changed by a general custom, it must 
 have prevailed so notoriously as to enable the judges to take notice of 
 it without pleading or evidence. In Carson v. Blazer, the court from 
 their own knowledge established the deviation from the common law, 
 without referring the matter to a jury. It would, in truth, be an inver- 
 sion of their respective functions for the court to receive the law from 
 the jury. It will not be pretended that the finding of a general custom 
 would be good; and if so, the evidence was clearly inadmissible to 
 establish a general custom. 
 
 Now, what is the custom relied on here? Not a general one, pervad- 
 ing the State, for such would be part of the common law, and determin- 
 able by the judges. It was attempted to be established as a particular 
 custom, and as every particular custom must necessarily be, by evi- 
 dence before the jury ; and I care not whether, as having the dignity 
 
 1 10 Johns. 1 ; 6 Am. Dec. 306. * id. 67. 
 
 = i Bitin. 127; S Am. Deo. 398. s i pet. C. Ct. 325. 
 
 8 1 Bla. Oomm. 69. 
 
130 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 ___ _ — _ p 
 
 Gordon v. Little. 
 
 of a law of local obligation and superseding the common law within the 
 district where it is supposed to prevail, or as performing the more 
 humble office of a usage of such notoriety as to be presumed to have 
 entered into the stipulations of the parties, and tacitly to have become a 
 part of their agreement, the result is in either case the same. With 
 us, particular customs have no force. I know not a greater or a more 
 embarrassing evil than a law of merely local obligation. The rule of 
 the carrying business of the Ohio ought to be that of the Juniata, the 
 Susquehanna, the Delaware, and their tributary streams. Suppose a 
 different usage to exist in respect to each, is there to be different law in 
 respect to each? In fact, that result would be inevitable ; for I under- 
 stand the evidence to have been offered to a custom peculiar to the 
 Ohio, and it will hardly be expected that a usage the same in every par- 
 ticular should prevail with respect to aU our rivers. It is impossible to 
 get away from the conclusion that by giving the usage any further 
 effect than that of a convenient subject of reference to explain a latent 
 ambiguity in the expressions of the parties, where their meaning would 
 be otherwise doubtful, we repeal an established principle of the common 
 law — a matter which, I appi-ehend, is not open to us. So that, view 
 the subject as we may, this custom or usage, if it have any operation 
 besides what I have just assigned to it, must have it as a rule of para- 
 mount obligation within a particular district, and not as the general law 
 of the land. But in Bowen v. Jackson i it was held by the Circuit Court 
 of the United States that evidence, even of a usage of trade, is inadmis- 
 sible when the law on the subject is settled ; and also by the same court, 
 in Winthrop v. Union Tnaurance -Company,^ that opinions as to the 
 construction of a contract are not evidence ; 'and in Henry v. Risk ^ it 
 was held that a witness cannot be admitted to contradict the established 
 principles of the law. In Stoever v. Whitman* the very principle 
 under consideration was decided by this coiu-t, by whom it was held 
 that evidence of a custom in a particular place, different from the 
 common law, to reenter for a forfeiture incurred by non-payment of 
 rent, is inadmissible, the chief justice who delivered the opiifion of the 
 court declaring that miserable would be our condition if property were 
 to depend, not on the contract of the parties, expounded by established 
 principles of law, but on what is called the custom of particular places, 
 so that we might have different law in every town and village of the 
 State. The same mischief would arise from having different law with 
 respect to the navigation of every river of the State. But, even if we 
 
 1 Whart. Dig. 262. « 1 Dall. 265. 
 
 ' IfM- * 6 Bian. 418. 
 
CARRIER AND CUSTOMER. 131 
 
 Illustrative Cases. 
 
 had the power, what inducement have we to alter the common law? 
 "Wovild its rule of responsibility, when applied to the carrying business 
 of the Ohio, produce evUs which are not felt in its application to that of 
 the other rivers of the State, or to carrying by land? 
 
 We are to recollect that our decision will owe its importance, not to 
 the value of the property immediately involved (although that is con- 
 siderable), but to the rule it may establish for the future ; and if such 
 rule be not the most convenient, the parties have in every case power to 
 estabhsh a particular measure of responsibility for themselves. It is 
 only where they have neglected to explain themselves fuUy that some 
 preestablished rule, to which they are supposed to have referred, 
 becomes necessary. Now, it is supposed that a usage has existed with- 
 out even any knowledge of a preexisting rule, which consequently indi- 
 cates the wholesome and convenient measure. To me, however, it seems 
 that no measure or rule — if it can be so called — which is altogether 
 uncertain in its nature can be either wholesome or convenient. If we 
 go by the common law, we shall have a definite, known rule, which, 
 applied to the facts by the court, will produce as much certainty of result 
 as legal proceedings are susceptible of ; if we go by the usage, the whole 
 matter wiU have to be determined by the jury, on evidence of the coin- 
 mon practice and understanding on the subject, which would be to go 
 by no rule at aU. So that the right to compensation wiU in every 
 instance depend on what the jury may think the proper degree of dili- 
 gence. We should be perpetually inquiring by a jury as to what is the 
 law of the land ; and the degree of diligence required by the carrier 
 would be as fluctuating as the opinions of the witnesses called to Estab- 
 hsh it. 
 
 That the common law has not been so altered as to contract the 
 responsibiUty of carriers by water is proved by Lea v. Stroud and Bell 
 V. Beed. The business of the Delaware and Susquehanna furnishes 
 nothing like a custom; for on these, as well as on their tributary 
 streams, carrying for hire is httle known. The produce of the country 
 is for the most part taken to market in flat-bottomed boats purchased 
 by the owners of it, and navigated by hands that receive daily wages. 
 The bargemen — who are, striekly speaking, common carriers — were, till 
 lately, mostly employed in transporting merchandise up these rivers, a 
 sort of navigation in which there is so little of peril that with ordinary 
 dUigenoe a loss can scarcely ever occur ; and that furnishes a satisfac- 
 tory reason why there is no instance of an action having been brought 
 against one of these where the negligence was not gross and palpable. 
 These remaxks are applicable only to that part of the Delaware where 
 
132 IN DIFrUKKNT RELA.TIONS AND OCCaPATIONS . 
 
 Gordon «. Little. 
 
 the tide does not flow, the carrying business from abroad to the port of 
 Philadelphia being governed as well by the maritime as the common 
 law. 
 
 I have said the usage would have been competent, not as a rule of 
 paramount obligation, but as subservient to explanation of a latent 
 ambiguity in the bill of lading, if that term may with propriety be 
 applied to a fresh- water transaction. I do not say there was in fact any 
 ambiguity in the paper signed by the agent of the defendants. The 
 words, " unavoidable dangers of the river," seem to me equipollent to 
 the words, "perils of the seas," in a policy of insurance; and these 
 are well understood to mean those dangers which arise from tempests, 
 storms, rocks, and sands ; they are, in fact, the unavoidable dangers of 
 the seas. There are indeed other dangers that may justly be said to be 
 of the seas, but as these may be averted by human effort, the risk from 
 them must be borne by the master or owner, and not by the underwriter 
 who is an insurer against only extraordinary perils ; so that it may, in 
 general, be said the responsibility of the one begins where that/of the 
 other ends, the goods being covered from all risk whatever. It is, 
 therefore, fair construction to say the excepting of the unavoidable 
 dangers of the river meant no more than the exception which is made 
 by the common law. 
 
 I at first thought that, as the carrier was in effect an insurer, the usage 
 of the particular river might be permitted to operate on the contract, just 
 as the usage of a particular trade is permitted to operate on the contract 
 of insurance. But the relaxation of the common-law rules of evidence in ' 
 the case of a pohcy arises from the clumsiness of the instrument, 
 which has undergone little or no alteration since it came into use, 
 although the ever-varying circumstances of trade have produced a 
 variety of corresponding modifications of its obligation which is often 
 independent of its terms. Hence, the usage of every particular trade 
 necessarily enters into every poUcy, and is resorted to for the purpose of 
 explaining and even controUing those parts of the instrument which are 
 merely formal. The contract of the carrier, however, is quite a differ- 
 ent thing. It is not in the form of an instrument ; but the parties ai'e 
 supposed to express their meaning specially, without regard to form. 
 It is not a contract of indemnity ; and that the carrier is an insurer is 
 not its object, but the consequence of the extraordinary diligence he is 
 bound to use. It is, therefore, to be construed strictly according to the 
 rules of the common law. It seems to me, therefore, the only error 
 the judge committed was in favor of the defendants below, in permit- 
 ting them to give evidence of the commercial meaning of the words 
 
CAKBIER AND CUSTOMER. 
 
 133 
 
 Illustrative Cases. 
 
 " unavoidable dangers of the river," which were too clear of themselves 
 to admit of interpretatio.n. ' 
 
 Concurring with my brethren that the other errors have not been 
 sustained, I am of opinion that the judgment ought to be affirmed. 
 
 Dltjcau, J. , delivered an opinion concurring with the chief justice. 
 Judgment reversed and a venire facias de novo awarded. 
 
 12. same — rrsagbs excusing notice of arrival op goods.. 
 
 Farmers and Mechanics' Bank v. Champlain Transportation 
 
 Company.* 
 
 In the Supreme Court of Vermont, January, 1844. 
 
 Hon. Charles K. Williams, Ghief Justice. 
 " Isaac F. Redfield, \ 
 " MiLO L. Bennett, > Judges. 
 " William Hebakd, J 
 
 1. Evidence ol the visage of business of the carrier and of the public is receivable to show 
 
 what class of property the carrier is responsible for as such, when his liabilty com- 
 mences, and when it ceases. 
 
 2. Where the defendants, who were common carriers on Lake Champlain, were intrusted 
 
 with a package of bank-bills to can-y from B. to P., directed to the cashier of the bank 
 at P., and they delivered them to the wharfinger of the wharf at P., at which place 
 their boat touched, from whom the package was stolen, in an action by the consignors 
 for the loss; held, on the first appeal, that it was competent for the defendants to prove 
 tliat it was their uniform usage, well known to the plaintiffs, to deliver such packages 
 of money, when intrusted to them, to the wharfinger having charge of the wharf where 
 the boat landed, without giving any notice to the consignee. Held, further, on a second 
 appeal, that it was not essential to show that the plaintiffs had actual knowledge of this 
 usage. 
 
 Trespass on the case against the defendants as common carriers of 
 goods, etc. , from Burlington to Plattsburgh, New York. The declaration 
 alleged that the plaintiffs delivered to the defendants, and the defend- 
 ants accepted a package of bank-bills amounting to $1,109, directed to 
 Richard Yates, Esq. , cashier of the Clinton County Bank, at Plattsburgh, 
 " to be safely and securely carried and conveyed by the said defendants 
 from Burlington aforesaid to Plattsburgh aforesaid, and then, to wit, at 
 said Plattsburgh, safely and securely to be delivered to said Richard Yates, 
 Esq., cashier;" but that the package was never delivered as directed, 
 
 • Reported 16 Vt. 52. 
 
134 IN DIFFERKNT RELATIONS AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlain Transportation Co. 
 
 but through the negligence and carelessness of the defendants was 
 lost. Plea: the general issue, and trial by jury. 
 
 It appeared on trial that the package was delivered by the teller of 
 the plaintiffs' bank to the captain of the defendants' ferry-boat June 5, 
 1839, and that when the boat arrived at Plattsburgh the captain deliv- 
 ered the package to one Ladd, the wharfinger, to carry to the bank, but 
 that while in Ladd's possession it was stolen, and never reached the 
 bank. As to whether there was any particular understanding or agree- 
 ment between the teller and the captain that the latter should deliver 
 the package to Yates or at the bank in Plattsburgh, the testimony was 
 contradictory. 
 
 It was conceded that the defendants' boat, at that time and during 
 the season, was engaged in transporting goods, etc. , from Burlington to 
 St. Albans, touching at Port Kent and Plattsburgh only long enough to 
 discharge and receive freight and passengers. The court having inti- 
 mated to the counsel that they should charge the jury that though the 
 defendants might be common carriers of ordinary goods, etc. , yet it was 
 not to be taken prima fade that they were common carriers of bank- 
 bills, the plaintiffs introduced evidence tendiijg to prove that the defend- 
 ants, prior to and until the time of the delivery of the package in 
 question, had not only held themselves out to the public as common 
 carriers of bank-bills as well as of ordinary goods, etc., without distinc- 
 tion, but had in fact become such by their course of business. 
 
 The defendants thereupon offered to prove — which had been before 
 offered by them and excluded by the court — that it had ever been the 
 constant, uniform, and unvaried usage and custom of all the boats 
 belonging to the defendants, and of all the masters and officers thereof, 
 and particularly of this ferry-boat, when they received packages of 
 money like the one in question, to carry to any place on the lake, and 
 particularly to the bank at Plattsburgh, to deliver them to the wharf- 
 inger, for him to cai-ry to the bank, as was done in this case, and not 
 to the consignee, and this without giving any notice to the consignee ; 
 and that this uniform custom was well known to the cashier of the plain- 
 tiffs' bank, and to Dr. Peck, president and a director of said bank at 
 the time of the delivery of said package. This was objected to by the 
 plaintiffs and excluded by the court. Exceptions by the defendants. 
 
 The jury returned a verdict for the plaintiffs. 
 
 C. Adams and D. A. Smaller/, for the defendants. — The plaintiffs 
 count upon a special undertaking to deliver the package to Ei chard Yates, 
 at the Plattsburgh bank. Upon this point the testimony was contradic- 
 tory ; and how the fact was found does not appear, nor whether that 
 
CARRIER AND CUSTOMER. lii.'> 
 
 Illustrative Cases. 
 
 question was submitted to the jurjr. It was competent for the parties 
 to have made such special contract, and on proof of it the plaintiffs 
 might have recovered ; but in that event the general liability of common 
 <;arriers would not have been drawn in question, i The case, apparently, 
 was put upon the ground that such contract was unimportant, and that 
 the ordinary duty of carriers involved the same duty. But the defend- 
 ants, as carriers by water, would not necessarily be carriers beyond the 
 wharf at Plattsburgh ; and if there was any undertaking to carry beyond 
 the wharf, it must be proved by an express contract to that effect, or 
 implied from the general course of business, or the particular usage 
 which had obtained between these parties.^ The undertaking of carriers 
 of goods generally is satisfied by a deUvery of the articles at the usual 
 wharf at the port of dehvery.^ In this case, then, the plaintiffs must 
 show a distinction between the liability of carriers of goods generally 
 and carriers of packages of bills. Carriers may, it is true, extend their 
 business to carrying packages of bills, but it is at their election whether 
 they wiU do so.'' Whether carrying packages of bills came within the 
 ■defendants' ordinary business was matter of evidence. The plaintiffs 
 had a right to prove ' ' that the defendants had bee :)me carriers of bills 
 :as well as of ordinary goods and merchaniise ;" and this right in the 
 plaintiffs involves a corresponding right in the defendants to introduce 
 •evidence to rebut it.^ The defendants, then, should have been per- 
 mitted to prove their uniform custom relative to the delivery of pack- 
 ages at the wharf to the wharfinger, without notice to the consignee, and 
 the knowledge of the plaintiffs of the existence of this uniform custom.^ 
 C. D. Kasson, for the plaintiffs. — 1. The case shows that the jury 
 :found (1) that the defendants were common carriers; (2) that they 
 were common carriers of this species of property ; (3) that they received 
 the package in question as common carriers, and that the captain, in re- 
 ■ceiving the package, acted as captain and agent for and in behalf of the 
 defendants. The duties of a common carrier are such as are aflBxed to 
 this vocation by law, and do not result from the contract. The delivery 
 by the consignor and acceptance by the carrier are all that is necessary ; 
 
 1 Garside v. Navigation Co., 4 Term Rep. « Gibson v. Culver, 17 Wend. 305; Ostran- 
 
 381; Hyde v. Trent Nav. Co., 5 Term Rep. der v. Brown, 15 Johns. 39; Story on Bail. 
 
 389; Golden v. Manning, 2 W. Black. 916; 345,346; RusMorth ». Hadfleld, 7 Bast, 224; 
 
 Ackley V. Kellogg, 8 Cow. 223; St. John o. Cole v. Goodwin, 19 Wend. 251; Garside v. 
 
 Tan Santvoord, 25 Wend. 660. Navigation Co., 4 Terra Rep. 582; Hyde v. 
 
 = Piatt V. Hibhard, 7 Cow. 497. Trent Nav. Co., 5 Term Rep. 390; St. John v. 
 
 ' Chickering v Fowler, 4 Pick. 371; Abb. Van Santvoord, 25 Wend. 660; Blin v. Mayo, 
 
 ■on Ship. 33. 10 Vt. .'56; 2 Kent's Coram. 604, 605; Story on 
 
 < Story on Bail. 300, 301, 328; Sewall c. Bail. 343-346, 352, 566; Sewall «. Allen, 6 
 
 Allen, 6 Wend. 335. Wend. 335. 
 
 6 Sewall V. Allen, 6 Wend. 335. 
 
13 (J IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlain Transportation Co. 
 
 the law then steps in and helps out tfie contract by adding thereto Ihe 
 duty of transport and delivery to the consignee. ^ The duty is not 
 confined to the mere carrying, but extends also to a delivery to the 
 consignee, or a delivery at some proper place with notice to the con- 
 signee.^ 2. The duty being to carry and deliver, we contend ( 1 ) that the 
 defendants cannot restrain it by any implied contract or particular usage ; 
 and (2) that they have not so done in this case. The case shows that the- 
 package was at least delivered to the defendants, and by them accepted, as- 
 carriers. This is sufficient to constitute the necessary contract, and ipso 
 facto devolves upon the carriers the duty of transport and delivery.* - 
 3. The case further shows that the parcel was directed to " Eichard Yates, 
 Esq. , cashier, Plattsburgh, N. Y. " The carrier must deliver according to- 
 the direction ; and when no direction is given except the address upon 
 the parcel, that is his " direction." * 4. The case admits that the boat 
 ran to Plattsburgh, and that the direction of the parcel was at Platts- 
 burgh. The term "Plattsburgh," to which the defendants were 
 common carriers, is nomen coUectivum, and extends at least to the 
 whole port, or village, or settlement at, on, about, or near the landing. ^ 
 5. The usage, which the defendants offered to show was inadmissible, as- 
 contravening the general law of the land.^ We do not deny that usage 
 is admissible in some cases arising under the law-merchant, — usages 
 of trade to determine the liability of underwriters on questions of 
 
 1 Lane «. Cotton, 1 Salt. 143; s. c. 1 Ld. Ld. Eaym. 792; Tiohburneu. White, Stra. 145;. 
 
 Eaym. 649, per Powys, J., and 652, per Lord Stuart v. Crawley, 2 Stark. N. P. 323; Or- 
 
 Holt; Coggs V. Bernard, 2 Ld. Raym. 918; ange Bank v. Brown, 3 Wend. 161; Hollis- 
 
 Upshare v. Aidee, Com. 25; Gosling v. Hig- ter v. Nowlen, 19 Wend. 239; Camden, etc.,, 
 
 gins, 1 Camp. 451; Forward v. Pittard, 1 Transp. Co. v. Belknap, 21 Wend. 354; St. 
 
 Ter^ Kep. 33 ; Riley v. Home, 5 Bing. 217. John v. Van Santvoord, 25 Wend. 660. 
 
 s Rich V. Kneeland, Cro. Jac. 330; per < Rich ti. Kneeland, Cro. Jao. .330; Taylor 
 
 Lord Holt in Lane v. Cotton, 1 Ld. Raym. v. , 2 Ld. Raym. 792; Hatchwell v. 
 
 652; Taylor v. , 2 Ld. Raym. 792; Cooke, 6 Taun. 577; Birkett v. Willan, » 
 
 Brown v. Hodgson. 4 Taun. 189; Hyde a. Barn. & Aid. 356; Stephenson v. Hart, 4 
 
 Trent Nay. Co., 5 Term Eep. 390; in re Bing. 476; and St. John v. Van Santvoord,. 
 
 Webb, 2 J. B. Moo. 500. Story on B.iil. 25 Wend. 596, where the ease was identical 
 
 345-347; Hatchwell v. Cooke, 6 Taun. 577; with this on this point. 
 
 Bodenham v. Bennett, 4 Price, 31 (cited In 6 Birkett i>. Willan, 2 Barn. & Aid. 336; 
 
 Duff t>. Budd, 6 J. B. Moo. 469); Griffith W.Lee, Becktord v. Crutwell, 5 Car. & P. 242; Os- 
 
 1 Car. & P. 110; Orange Bank v. Brown, 3 trander v. Brown, 15 Johns. 39. 
 
 Wend. 161; De Mott v. Laraway, 14 Wend. » Upsharo v. Aidee, Com. 25; Oppenhelm 
 
 226 ; Elliot II. Rossell, 10 Johns. 1; Ostrander v. Russell, 3 Bos. &. Pul. 45; Ostrander v. 
 
 ». Brown. 15 Johns. 39 ; HoUister ». Nowlen, Brown, 15 Johns. 39; Bryant v. Common- 
 
 19 Wend. 239; Bowman v. Teall, 23 Wend. wealth Ins. Co., 6 Pick. 146; Eager «. Atlas 
 
 806; St. John v. Van Santvoord, 25 Wend. Ins. Co., 14 Pick. 141; Crosby «. Pitch, 12 
 
 ()G0;per Verplanck, Sen., in Powell v. Myers, Conn. 410; Colo v. Goodwin, 19 Wend. 259; 
 
 26 Wend. 596; Sewall v. Allen, 6 Wend. Clarkti. Faxton, 21 Wend. 152; Gonld u Hill, 
 
 ^^- 2 Hill, 624 (citing opinion of Story, J., in 
 
 ' Rich V. Kneeland, Oro. Jac. 330 ; per Lord case ot The Reeside, 2 Sumn. 567). 
 
 Holt in 1 Ld. Raym. 652; Taylor v. , 2 
 
CAKUIEU AND (JUBIOMI*. 1^7 
 
 Illustrative Cases. 
 
 deviation, etc., etc., — but it wiirbe observed that in these eases the law 
 itself is based upon particular usages in particular places or in particu- 
 lar trades. 6. We claim that if it be permitted to make an interpola- 
 tion into the common law by local usage, this usage does not attain to 
 that dignity. We are aware that in some few instances courts have 
 held that the general course or usage of trade in a given port wiU 
 govern the mode of fulfilling the obligations imposed by law upon car- 
 riers. But, on the fullest examination of all the eases, not one is to be 
 found where even in the obiter dicta of the judges they have ever allowed 
 that the mere usage of the particular carrier himself would be sufficient 
 to subvert the law of the land, or in anywise affect his liability, except- 
 ing the case of Gibson v. Culver.^ That was a case of a mail-coach, 
 and CowEN, J., who delivered the opinion, lays stress on that fact. 
 But all the cases on which that opinion is based are mere obiter dicta 
 of the judges, or cases of a general, uniform, notorious local custom of 
 the place or of trade. But that case has been substantially overruled 
 by the same court in Hollister y,. Nowlen.'^ It is, moreover, in direct 
 hostihty to the whole course of English decisions, and the former deci- 
 sions in New York, Ostrander v. Brown, and many other cases. It con- 
 flicts with Judge Stoky in the case of The Eeeside,^ and finds no 
 warrant in Lord Kenyon's speculations in Hyde v. Trent Navigation 
 Company,* in which the other judges differed from him, for he only 
 doubted as to the effect of the general usage of trade or of the 
 place. In Gatliffe v. Bourne ^ an attempt was made to raise the ques- 
 tion made in this case, but it failed on demurrer to special pleas ; and 
 it is well remarked by Bronson, C. J., in Hollister v. Nowlen,'^ that the 
 doctrine, if it ever existed in England, is long since exploded. If such 
 a usage can discharge the carrier, then, as was well said by Bronson, 
 C. J., in Gole v. Goodwin, " a usage of mere neglect" may be inter- 
 posed to justify him. 7. But the usage offered to be shown is no 
 usage. The offer was to show that the captain was in the habit of 
 delivering to Ladd, "for him to carry to the bank." Ladd, then, 
 acted as agent for the boat. Neither the consignees nor the plaintiffs 
 ever employed him, but the captain did. It is a mere offer to show 
 that the defendants have used a course of negligence in delivering 
 goods, or else to show in what manner they have hitherto done, ,or 
 procured to be done, their own business. 
 
 1 17 Wend. 305. 3 3 Snmn. 567 (cited in 3 Hill, 624). 
 
 2 19 Wend. 239; Cole v. Goodwin, 19 « 5 Term Rep. 390. 
 Wend. 251 ; Claik v. Faxton, 21 Wend. 152; > 6 2 lloo. & R. 100. 
 Bowman v. Teall, 23 Wend. 306; St. John v. « 19 Wend. 239. 
 Van Santvooid, 25 Wend. 660; Gould v. Hill, 
 
 2 Hill, 624. 
 
138 IN UIFl'EKENT KELATIONS AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlaln Transportation Co. 
 
 Williams, C. J., delivered the opinion of the -court. 
 
 This case has been elaborately argued, but I apprehend it does not 
 involve an investigation of all the law and learning bestowed upon it. 
 The first question, as to the interest of Mr. Warner, the cashier, it is not 
 necessary to decide, as the case is to be sent for another trial on another 
 point, and it is in the power of the plaintiffs to remove all questions on 
 this subject by executing to Mr. Warner a release of aU claims on him 
 arising out of this transaction. The court are of opinion, on the other 
 questions raised, that the evidence tending to prove custom and usage, 
 and the knowledge of the plaintiffs, should have been admitted. 
 
 Whoever hold themselves out to the world as common carriers must 
 do all required of them as such by law, and may not refuse in particular 
 instances without sufficient cause. Hence, when the defendants held 
 themselves out as common carriers of goods or money from BurHngton 
 to Plattsburgh, or elsewhere, they assumed all the duty and responsibility 
 attached to them in that character. It becomes, therefore, important 
 to them, as well as the community generally, to ascertain what are those 
 duties, and how far they can be modified by contract, usage of business, 
 or their particular usage. No one seems disposed to question but that 
 they were responsible for the safe-keeping of money or goods from the 
 time they received them until they delivered them at the place of their 
 destination, notwithstanding the loss may have happened without any 
 fault on their part And if the law is as strict and unbending as the 
 counsel for the plaintiffs contend, no proprietors of steamboats, rail- 
 ways, or stages could with safety or propriety become common carriers ; 
 nor if it be their duty, from which they cannot exempt themselves, to 
 dehver every package or parcel intrusted to their care, to the individuals 
 to whom they may be directed. The boats do not stop at the different 
 landing-places long enough to deliver to every individual in that town 
 the parcel directed to him. Raiboad caa-s cannot deviate from their 
 track, nor stages go to the house of every individual on theu- route, and 
 of course they must employ responsible agents to perform that which 
 they cannot do themselves. I apprehend, however, that this burden is 
 not thrown on them, but they may prescribe the mode, the manner, and 
 the place where they will deliver the goods, and those who are 
 acquainted with their rules and regulations in this particular must 
 abide by the consequences. In the case of Oavside v. Proprietors,^ it 
 was determined that the duty of the defendants as carriers ceased when 
 the goods were landed at Manchester, although they were put into the 
 
 » 4 Term Rep. 680. 
 
CAKKIER AND CUSTOMER. 139 
 
 Illustrative Cases. 
 
 warehouse of the defendants, and were there consumed by an accidental 
 fire. 
 
 The duty of the carrier commences when the goods are deUvered to 
 him, and it is conceded that a personal delivery is not required. He 
 may give notice where he will receive goods, at what place they may be 
 deposited, and his usage and custom in this particular, it has never been 
 doubted, is sufficient to charge Mm with the reception and the com- 
 mencement of his risk. His usage, as weU as the usage of business, is 
 to be- received as competent and proper evidence to show when the 
 goods are to be considered as coming into his custody. I see no good 
 reason why the same evidence should not be received to show the time 
 of his undertaking, the place where, or the person to whom he contracts 
 to deliver goods intrusted to his care. And if the person who employs 
 the carrier knows of this, he cannot contend that the undertaking of 
 the carrier was more extensive. I apprehend it wiU be found, on an 
 examination of the authorities, that when connecting lines are employed 
 in the transportation of goods, and when the employment of wharfingers 
 or receivers as independent carriers is requisite in order to forward 
 goods, etc., to their ultimate destination, the liability of the first carrier 
 will depend entirely on the fact whether, by the contract, the wharfingers, 
 etc., are to be considered as his agents, and subsidiary to his under- 
 taking. But when it is understood by the contracting parties that he is 
 to deliver them to another, or at a place certain, the duty of ,the carrier 
 terminates at that particular place, and the responsibility ceases on the 
 delivery at that place to, and the receipt by any person authorized there 
 to receive them. 
 
 The first case which has a direct bearing on the case before us is Oar- 
 side V. Proprietors,^ where the defendants were carriers from Stourport 
 to Manchester. Goods of the plaintiff were forwarded from Stourport, 
 directed to Stockport, beyond Manchester, by the defendants ; they 
 landed them at Manchester and put them into their own warehouse, 
 where they were destroyed ; and, inasmuch as it appeared that according 
 to the usage of business it was usual thus to deposit them when there 
 was no carrier from Stockport to receive them, the defendants were held 
 not to be liable, as the goods at the time of the fire were in their 
 custody as warehousemen. Now, it is to be observed in this case that 
 the goods were destined to a place beyond Manchester ; that the defend- 
 ants, as carriers, received them without direction, and, moreover, that 
 they "had agreed to forward them to Stockport by the first carrier that 
 should arrive. The authority of this case s recognized by Judge 
 
 1 i Term Eep. 581. 
 
liO IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlaln Transportation Co. 
 
 Story in his treatise on Bailments, and was also recognized in the 
 case of Hyde against the same defendants, i although a majority of 
 the judges thought it to be the duty of a carrier to deliver goods to the 
 persons to whom directed ; taut the usage of trade and business as modi- 
 fying the undertaking and regulating the place of delivery was recog- 
 nized. In the case of Wardel' v. Mourillyan,^ Lord Kenton, instead of 
 considering the duty of carriers to deliver to the persons to whom 
 directed as absolute and unqualified, left it to the jury to say what was 
 the custom. In the case of Catley v. Wintringham,'^ evidence of cus- 
 tom was received to ascertain whether goods had been actually delivered 
 or not. The case of In re Webb * recognized that the dutj' of carriers 
 may by contract be suspended, and they become warehousemen 
 between the time of the reception of goods and their delivery at the 
 place of their ultimate destination. 
 
 The case of Gibson v. Culver ^ is more immediately applicable to the 
 present, as it seems to be similar in many respects. It was considered 
 in that case that it was competent for the defendants, who were the 
 owners of a stage from Sand Lake to Albany via Troy, and had 
 received a box of combs directed to Messrs. Vail & Co. , Troy, to show 
 that it was the uniform usage and course of business in which they 
 were engaged to leave goods at their usual stopping-place in the towns 
 to which the goods were directed, without notice to the consignees, and 
 that if such usage was known to the plaintiff, or if it was of so long 
 continuance as to justify the jury in finding that it was known to the 
 plaintiff, the carrier would be discharged. The authority of this case 
 seems to be so decisive of the case taefore us, that to obviate it the 
 plaintiffs have to contend that it has in effect been overruled. In the 
 cases of HoUister v. Nowlen ^ and Cole v. Goodwin,'' where the defendants 
 were carriers of passengers, other points were raised and discussed, as 
 to how far carriers could limit their common-law liataility as to the 
 safety of goods by a general notice ; yet the case of Gibson v. Culver 
 was not impugned, but its authority recognized. In the case of St. 
 John V. Van Santvoord,^ the same doctrine contained in the case of 
 Gibson v. Culver was recognized and acted on. In the case of Gould v. 
 mn,^ common usage and a general notice is considered as evidence, and 
 that it may be urged as a foundation for modifying the contract ; and, 
 moreover. Chancellor Kent, in his Commentaries, expressly recognized 
 
 1 5 Term Kep. 389. » 19 Wend. 334. 
 
 2 1 Esp. 693. T 19 Wend. 251. 
 ' Peake X. P. 150. » 25 Wend. 660. 
 ■• 8 Taun. US. » 2 HiU, 623. 
 
 ' 17 Wend. 305. 
 
CARRIER AND CUSTOMER. 141 
 
 Illustrative Cases. 
 
 the authority of the case of Oibson v. Culver. The principle acknowl- 
 edged and established in this case is so consonant with reason and 
 propriety, and appears to me to be so necessarj"- to enable persons to 
 avail themselves of the facilities afforded by stages, steamboats, and 
 railroad cars to transport goods, parcels, and packages of money, and 
 which the owners would be compelled to abandon if they were legally 
 liable to deliver them at all events to the persons to whom directed, 
 that I should be disposed to recognize its authority unless it had been 
 expressly overruled and a different principle established. But, from an 
 examination of all the authorities, I think I may safely add to the 
 opinion expressed in Blin v. Mayo,^ that the usage of business in the 
 vicinity may be received to show when the liability of common carriers 
 ceases, as well as when it commences. 
 
 It is to be observed that, from the case as presented, all we are called 
 on to decide is that evidence of the usage of the defendants, and that 
 known to the president and cashier of the bank, should have been received ; 
 and I have therefore spoken- of this knowledge as important in the case. 
 The court, however, are not called on to decide whether this knowledge 
 is of any importance. If the evidence had been admitted, and it had ' 
 fallen short of establishing the fact of personal knowledge in the plain- 
 tiffs, I am not prepared to say the defendants would have been liable. 
 The court below told the counsel that although the defendants might be 
 common carriers of ordinary goods, etc., yet it was not to be taken 
 prima facie that they were carriers of packages of bank-bills, like the 
 one in dispute, and in this they were undoubtedly correct. The same 
 kind of evidence, then, which was used to charge them should have been 
 received to show how far they held themselves out as carriers by the 
 course of their business ; and if, from the course of their business, they 
 held themselves out as carriers of goods to be delivered at the wharfs 
 where they stopped, or of money to be delivered to the person having 
 the care of the wharf, or to any other person, it may be questioned 
 whether the plaintiffs were not required to take notice of their usage in 
 this particular, and also whether the very nature of the business of 
 transporting by steamboats and railroad cars is not notice that they 
 cannot either personally deliver to the consignees or the persons to 
 whom a package of money is directed, or send word, or give notice to 
 them of their arrival. Their stay at their stopping-place is so short that 
 notice could not be conveyed to any person at any distance from the 
 wharf or place of deposit ; and unless they stipulate, either by special 
 contract or general usage, that they will see that goods or money are 
 
 1 10 Vt. 56. 
 
142 IN JJIFFEBENX KELATION8 AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlain Transportation Co. 
 
 personally delivered to the person to whom directed, or will give notice 
 to him, it may be questioned whether the consignor must not provide 
 for the further transmission of the goods or money after the boats, cars, 
 or stages arrive at their stopping-place. The question, however, is not 
 before us, and is not decided, as the case does not reqviire it. 
 
 The evidence offered and rejected by the County Court should have 
 been received, and their judgment is consequently reversed. 
 
 Judgment reversed. 
 
 [Same case, in the Supreme Court of Vermont, January Term, 1846.*] 
 
 Hon. Charles K. Williams, Chief Justice, 
 " Isaac F. Eedfibld, ) 
 " Mild L'. Bennett, > Judges. 
 " Daniel Kellogg, ) 
 
 In accordance with the opinion, ^ the case was again tried. Evidence 
 of the usage of carriers to deliver packages of bank-bills intrusted 
 to them to the wharfinger, on the wharf, was given, and also that 
 this usage was known to Dr. Peck, president and a director of the 
 bank. The defendants, among other things, requested the court to 
 instruct the jury that if they found that the usage of the defendants 
 above mentioned was known to the president of the bank, it was, in 
 point of fact, notice to the bank. But upon this point the court 
 instnicted the jury that notice of the usage claimed might be express, 
 or might be implied from the circumstances of the case, and that notice 
 to the cashier of the bank, and also to the teller in this particular 
 case, — as he was the agent to deliver the package of biQs to the captain 
 of the boat, — or to either of them, was a notice to the bank itself ; but 
 that if Dr. Peck, the president of the bank, had notice of such a usage 
 as was claimed to exist, this was not of itself notice to the bank, simply 
 because he was a director and president of the bank, but that such 
 evidence was competent as tending to prove notice to the bank ; and 
 that if from this fact, and from the long continuance, notoriety, and 
 uniformity of the usage, and from all the cii-cumstances attending this 
 case, they were satisfied that the board of directors, or a majority of 
 them, had knowledge of the existence of such usage, this was suiBcient 
 to charge the bank with notice, and that it was immaterial whether such 
 directors came to the knowledge of such usage when in session and 
 acting as a board of directors, or upon other occasions and at other 
 times. But the jury were- told that if Dr. Peck had had the agency of 
 
 * Reported 18 Vt. 181. 
 ' Ante, p. 133. 
 
CAKRIEE AND CUSTOMER. 143 
 
 Illustrative Cases. 
 
 the affairs of the bank committed to him by the directors, and had been 
 intrusted with the transmission of the money of the bank to one place 
 and another, as occasion should require, then notice to him would of 
 itself be notice to the bank. 
 
 The jury returned a verdict for the plaintiffs. Exceptions by defend- 
 ants. 
 
 C. Adams and D. A. Smalley, for the defendants. — It was not material 
 to the defence to show that the plaintiffs had knowledge of the custom 
 and usage that had prevailed as to the manner of delivering packages of 
 bills. If the receipt of the package implied an obligation to deliver at 
 Plattsburgh, it must be, in the absence of an express contract, to deliver 
 according to general custom or particular usage, and the plaintiffs were 
 bound to take notice of such custom or usage.* But, if notice to the 
 banli: was necessary, we insist that the notice was sufl3icient. 
 
 G. D. Kasson and Asabel Feck, for the plaintiffs. — The charge of the 
 court below as to what would constitute notice to the plaintiffs of the 
 usage claimed by the defendants to exist, was correct. ^ The plaintiffs 
 must have had knowledge, of such usage in order to affect them by it. 
 This was never doubted. Even in Gibson v. Culver,^ Blin v. Mayo,* 
 and this case when here before, such knowledge was the only ground 
 upon which the courts held the usage admissible. It is only on the 
 ground that the parties knew of the usage, and are therefore supposed 
 to have contracted with reference to it, that it is ever admissible ; and it 
 is a matter of fact for the jury to find whether, in any given case, the 
 parties in fact contracted with reference to it. This is so even with 
 reference to general usages. ^ But in the case of a usage of the party, 
 it was never pretended that it could avail anything unless it was known 
 to the party to be charged therewith. ^ And the usage must also be to 
 
 1 S. c. 16 Vt. 52; story on Bail., §§ 533, 534; Smith, 1 Mau. & Sel. 555; Ang. & Ames on 
 Cole; epper ^. Good, 5 Car. & P. 380; Bar- Corp. 247-249; Hayward v. Pilgrim Society, 
 ber V. Brace, 3 Conn. 9; Crosby v. Fitch, . 21 Pick. 277; Washington Bank v. Lewis, 22 
 12 Conn. 410; Rushforth v. Hadfleld, 6 East, Pick. 24; Commercial Bank v. Ounnlngham, 
 619; Kent v. Conghtry, 11 Johns. 107; Lethu- 24 Pick. 276; Housatonie, etc., Bank v. Mar- 
 lier's Case, 2 Salk. 443; Noble v. Kennoway, 2 tin, 1 Mete. 308; Fulton Bank «. Benedict, 1 
 Doug. 510; Vallauce ». Dewar, 1 Camp. 503; Hall, 495; Fulton Bank v. New York, etc., 
 Ougier v. Jennings, 1 Camp. 505 ; Coit v. Canal Co., 4 Paige, 136 ; Hayden v. Middlesex 
 Commercial Ins. Co., 7 Johns. 385 ; Halscy v. Turnpike Co., 10 Mass. 403. 
 
 Brown, 3 Day, 346; Sewall v. Allen, 6 Wend. s 17 Wend. 305. 
 
 331; Story on Bail. 539-541; Gibson v. Culver, < 10 Vt. 66. 
 
 17 Wend. 305; Hyde v. Trent Nav. Co., 5 ' Rushforth «. Hadfleld, 7 East, 238; Wood 
 
 Term Rep. 389 ; Catley v. Wintriugham, Peake ». Hickok, 2 Wend. 504. 
 
 N. P. 150; Warden ■«. Mourillyan, 1 Bsp. « Eenner ». Bank, 9 Wheat. 697; Lincoln, 
 
 693; Gatliffe v. Bourne, 2 Moo. & R. 100; etc.. Bank «. Page, 9 Mass. 167; Eager ,». 
 
 Abb. on Ship.; 2 Kent's Comm. 604, 605; Atlas Ins." Co., 14 Pick. 143; Stdiy on Bail. 
 
 Stephenson v. Hart, 4 Bing. 476. 645. 
 
 2 Hider v. Dowell, 1 Taun. 333 ; Cross v. 
 
14 J: IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Farmers and Mechanics' Bank v. Champlain Transportation Co. 
 
 so deliver at the risk of the consignee. ^ A carrier whose liability is 
 fixed by law cannot change the law by his own act.^ 
 
 Kellogo, J., delivered the opinion of the court. 
 
 The remaining questions in the case arise upon the instructions given 
 by the court to the jury. The defendants were common carriers by 
 steamboat upon Lake Champlain, and as such received the package of 
 money for the loss of which this suit is brought. The case involves an 
 inquiry as to the extent of the duty and liability of common carriers. 
 And it has been urged in the argument that the defendants, having 
 received the package directed to the cashier of the Clinton County 
 Bank, at Plattsburgh, were bound to deliver it to the consignee, or at 
 least to deliver it at a proper place and give notice thereof to the 
 consignee, and that the usage and custom of the defendants to deliver 
 packages of money to the wharfinger upon the wharf, in order to he 
 available to the defendants by way of defence, must have been known 
 to the plaintiff ; and the court below, in their instructions to the jury, 
 seem to have so considered the law. This, we think, was an incorrect 
 view of the law as applicable to the case. 
 
 In the absence of any special contract between the parties in relation 
 to the subject, the duty and liability of the defendants must be deter- 
 mined by the law applicable to carriers of this description. This Uabihty 
 may be modified by contract, by the general usage of the business, or 
 by the defendants' particular usage. This was evidently the opinion of 
 this court waen the case at bar was before them on a former occasion. 
 Indeed, the case was then opened upon the ground that the evidence 
 of custom and usage offered by the defendants should have been 
 received. It is true that upon that occasion the defendants offered to 
 prove that the custom and usage upon which they relied were known to 
 the plaintiffs, but it is very obvious that the learned judge who then 
 delivered the opinion of the court did not consider it material that the 
 usage or custom should be known to the plaintiffs. He says: "The 
 court, however, are not called upon to decide whether this knowledge is 
 of any importance. If the evidence had been admitted, and it had 
 fallen short of establishing the fact of personal knowledge in the plain- 
 tiffs, I am not prepared to say that the defendants would be liable." 
 
 But, whatever may have heretofore been the views of the court upon 
 this point, a majority are now of opinion that it is not necessary to 
 prove that the plaintiff had personal knowledge of the usage in order 
 
 ' story on Ball., §548. voord, 25 Weud. 660; Ostrauder v. Brown, 
 
 « Allen V. Sewall, 2 Wend. 327; Dwight v. 15 Johns. 89. 
 Brewster, 1 Fiok, 60; St. John v. Van Sant- 
 
POWERS OF CORPORATIONS. 145 
 
 Illustrative Cases. 
 
 to make it available to the defendants. The case of Van Santvoord v. 
 St. John 1 has a direct bearing upon the case at bar. The doctrine of 
 that case is, in substance, this : that where goods are delivered to a 
 carrier, marked for a particular place, without any directions as to their 
 transportation and delivery except such as may be inferred from the 
 marks themselves, the carrier is only bound to transport and deliver 
 them according to the established usage of the business in which he is 
 engaged, whether the consignor knew of such usage or not. With the 
 reasoning and authority of that case we are well satisfied. It is founded 
 in good sense and is sustainable upon principle. 
 
 The case at bar was put to the jury by the County Court upon the 
 supposition that, in order to enable the defendants to avail themselves 
 of the usage upon which they relied as a defence, the jury must find 
 that the plaintiffs had knowledge of such usage. This, we think, was 
 clearly erroneous, and for this error the judgment of the County Court 
 is reversed. 
 
 Bennett, J., dissenting. 
 
 Judgment reversed. 
 
 Justices. 
 
 13. CORPOEATIONS — USAGES CONTRARY TO CHARTER POWERS. 
 
 BuLKLEY V. Derby Fishing Company.* 
 In the Supreme Oourt of Errors of Gonnedicut, November, 1817. 
 
 Hon. Zephaniah Swift, Ghief Justice. 
 
 John Trumbull, 
 " William Edmond, 
 
 Nathaniel Smith, 
 
 Jerbmiah Gates Brainard, 
 
 Simeon Baldwin, 
 
 Calvin Goddard, 
 
 Stephen Titus Hosmbr, 
 " James Gould, 
 
 A corporation may, by usage and practice, render itself liable on contracts executed in a 
 different mode from tiiat authorized in its charter. 
 
 Action on a policy of insurance upon a vessel. At the trial the 
 plaintiffs offered in evidence the policy declared upon, signed " Canfleld 
 OiUett, president," and countersigned "Nathan Wheeler, assistant." 
 
 * Reported 2 Conn. 262 ; 7 Am. Deo. 271. 
 > 6 Hill, 157. 
 
 10 
 
146 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Balkley v. Derby Fishing Company. 
 
 The defendants objected to the evidence because the policy did, not 
 appear to be countersigned by the secretary, as provided by the act 
 authorizing the company to pursue the business of marine insurance. To 
 obviate this objection the plaintiffs offered in evidence the correspond- 
 ence between the insured and secretary of the company, and the registry 
 of the policy by the secretary, to prove that the company had by ita 
 authorized officers ratified the policy ; they also offered in evidence the 
 book of records of policies of insurance kept by the company, to show 
 that it had not been the practice for the secretary to countersign the 
 policies, and that many policies had been issued countersigned by the 
 assistant, like the one in suit. But, the defendants objecting, the court 
 rejected the evidence so offered by the plaintiffs and directed the jury 
 to find a verdict for the defendants, which they did. Motion for a new 
 trial, the questions upon which were reserved' for the advice of all the 
 judges. 
 
 Daggett and Staples, for the plaintiffs, cited 2 Bacon's Abridgment,^ 
 Dariforth v. Schoharie and Duanesburgh Turnpike Road,'^ Spear v. 
 Ladd,^ and Hayden v. Middlesex Turnpike Company.* 
 
 N. Smith and Bristol, for the defendants, cited Head v. Providence 
 Insurance Company * and Beatty v. Marine Insurance Company.^ 
 
 Swift, C. J. — In the acts constituting banks and other corporations, 
 regulations are made with regard to the mode in which they are to 
 transact their business and render their engagements obligatory. To 
 enable them to enforce the engagements made for their benefit, they 
 must act within the scope of their authority and conformably to the 
 directions of law. 
 
 In all cases where banks and similar corporations conform to their 
 charter, their acts are binding on them. So, in cases where they do not 
 conform literally to their charter, they may be liable. Suppose a bank- 
 ing corporation should by a vote agree to issue bUls in a different form 
 or with different signatures from those prescribed, they would by their 
 own act be rendered liable to pay them. If such a corporation, without 
 a vote, should introduce a usage and practice in the transaction of their 
 business different from that prescribed by law, they would by the same 
 reason be rendered liable ; for, though such conduct might be improper 
 in itself, yet the bank cannot take advantage of their own wrong to 
 avoid their contracts. It cannot be supposed that, in general, those who 
 dealt with them had knowledge of their deviation from the charter regu- 
 
 1 Gwil. eel. 13. ■" 10 Mass. 379; li Am. Dec. 143. 
 
 - 12 Johns. 237. <■ 2 Cranoh, 127. 
 
 ■ 1 1 Mass. 94. » 2 Johns. 109 ; 3 Am. Dec. 401. 
 
POWEKS OF C0KF0RAT10N8. 147 
 
 Illustrative Cases. 
 
 lations ; and it is to be presumed that they act according to law. H it 
 be admitted that banks may thus deviate and tr.eii avoid their contracts, 
 they would be enabled to practice the grossest frauds on the community, 
 especially in a country where there is such an immense number of mon- 
 eyed "institutions as in this, and where it is practicable for a very few to 
 know the extent of their powers and regulations. Banks, like individ- 
 uals, must be liable in the character which they hold out to the world ; 
 and whatever may be the forms of their obligations, if they are accord- 
 ing to their charter, their corporate votes, or their known usage ftad 
 practice, they ought to be binding. 
 
 A corporate act is not required in all cases. It is sufficient if there 
 be a usage and practice, under such circumstances as may be presumed 
 to be within the general knowledge and by the consent of the company. 
 Nor can the stockholders or members of the company be subjected to 
 any inconvenience or damage. If any officer vested with certain powers 
 should in any instance violate them, and attempt illegally to subject the 
 corporation to any obligation, such corporation may, instantly on the 
 discovery, disavow the act and prevent a repetition; and then, as 
 there will be neither law nor usage to sanction the transaction, it will 
 not be binding. But where the corporation will suffer such practice to 
 continue, it is to be presumed that it is done with their consent, and be 
 made obligatory on them. In the present case, it appears to me that 
 the evidence offered conduced to prove that it was the usage and prac- 
 tice of this company to underwrite policies of insurance and draw bills 
 of exchange in the form now under consideration, and, of course, that 
 it ought to have been admitted. Whether the evidence offered would 
 have been sufficient to have satisfied the jury of the fact, is not now the 
 question. We have only to decide on the relevancy ; the jury must 
 decide on the sufficiency of the testimony. 
 
 I am of opinion that a new trial ought to be granted. 
 
 Trumbull, Brainard, and Goddard, JJ., concurred in the opinion of 
 the chief justice. 
 
 HosMBR, J., also advised a new trial, citing Rex v. Bigg,^ in addition 
 to the authorities mentioned by counsel as going " to the full length of 
 deciding that, as against a corporation, an authority to its agent differ- 
 ent from the prescriptions of its charter might be implied." 
 
 Smith, J. , did not agree with the chief justice on the ground taken 
 by him, but acquiesced in the result on the ground that the secretaiy 
 had, in his correspondence with the insured, agreed to the policy in 
 question, and had afterwards registered the policy. 
 
 ' 3 p. Wms. 419. 
 
148 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company. 
 
 GoiTLD, J., gave an opinion favoring a new trial, holding that, as 
 against a corporation, the contract of an agent appointed beyond the 
 authority of its charter may be binding, though it may be otherwise 
 where the corporation itself claims a right under such contract, and 
 cited Ex parte Meymot ^ as a case containing an analogous doctrine, 
 where a clergyman, prohibited by statute ^ from trading, was neverthe- 
 less held liable for his contracts as a trader. He admitted it to be 
 generally, though not universally true, that an aggregate corporation 
 cannot confer express authority upon an agent except by deed, but held 
 that an appointment might well be implied from usual and frequent 
 practice, and that if an authority by deed were requisite, it would 
 in such case be presumed to have been so given — citing Mayor of 
 Kingston upon Hull v. Horner.^ He thought, also, that a usage of a 
 corporation in the transaction of business was to be proved by the acts 
 of its officers or acknowledged agents in the management of its ordi- 
 nary concerns, and that, unlike the case of a presumption of title 
 arising from long-continued possession and enjoyment, such usage need 
 not be ancient. 
 
 Edmond, J., dissented. 
 
 Baldwin, J., gave no opinion, being interested in the funds of the 
 corporation defendant. 
 
 New trial to be granted. 
 
 14. FIRE INSURANCE — CtrSTOMAEY USE OF PROHIBITED ARTICLES. 
 
 Haepek V. City Insurance Company.* 
 In the Supreme Court of New York, July, 1857. 
 
 Hon. John Duer, Chief Justice. 
 " Joseph S. Bosworth, " 
 " Murray Hoffman, 
 " John Slosson, 
 " Lewis B. Woodruff, 
 
 Justices. 
 
 In a policy of Are insurance upon printing and book materials in a building, privileged for 
 a printing-offloe and bindery, tliere was a condition exempting the insurer (romliability 
 lor any loss occasioned by campliene. The property insured was destroyed by a flre 
 caused by a workman accidentally dropping a lighted paper into an open jar ol cam- 
 phene, which was kept in the building lor use in the business. In an action on the 
 policy, the jury having lound that when the policy was effected it was the general and 
 
 • Reported 1 Bosw. 520. 
 
 1 1 Atk. 198. « 21 Hen. VUI. Oowp. 102. 
 
riRE INSURANCE. 149 
 
 Illustrative Cases. 
 
 established custom among printers to use camphene in the printing 6t books, and tint 
 its use was not only advantageous, but necessary: held, that the exemption exleudtj 
 only to a loss occasioned by the use ol camphene for purposes other than that of 
 printing. 
 
 The questions decided in this action arise on a verdict for the plain- 
 tiffs, taken subject to the opinion of the court at General Term on the 
 exceptions taken on the trial. 
 
 The action was brought to recover a total loss under a policy of insur- 
 ance against fire, issued by the defendants, and dated the 3d of March, 
 1853. By the terms of the policy, the defendants insured the plaintiffs 
 against loss or damage by fire to the amount of $10,000 on their print- 
 ing and book materials, stock, paper, stereotype plates, fixtures, printed 
 books, and steam-engine, contained in certain brick buildings, particu- 
 larly described in the policy, with the privilege " for a printing-office, 
 bindery, books-tore, and steam-boiler in the yard." 
 
 The defence was that the fire was occasioned by camphene, in viola- 
 tion of the conditions of the policy and of the rights of the defendants. 
 The eighth condition of the policy, to which the defence refers, declares, 
 among other things, that the company shall not be liable for loss or 
 damage by fire " occasioned by camphene or other inflammable liquid." 
 
 The cause was tried before Mr. Justice Duee and a jury, in January, 
 1865. The defendants' counsel admitted the execution and delivery of 
 the policy, and of the preliminary proofs, the fire, the plaintiffs' owner-, 
 ship of the goods insured, their destruction by the fire, and that the loss 
 exceeded the amount insured. 
 
 It was proved that the fire was caused by the accidental ignition of 
 a quantity of camphene, kept in the plaintiffs' printing-office in a large 
 and open sheet-iron pan, in which the roUers used for fine printing 
 were cleaned. A number of witnesses were examined on the part of 
 the plaintiffs to prove that this use of camphene was general among 
 printers, and was not merely advantageous, but, for fine work, absolutely 
 necessary. 
 
 When the plaintiffs rested, the defendants' counsel moved for a non- 
 suit, substajitially on the grounds stated in his points on the argument 
 at General Term. The motion was denied, and the counsel excepted. 
 
 Several witnesses were examined for the defendants to repel the testi- 
 mony on the part of the plaintiffs. 
 
 When the testimony was closed and the counsel had summed up, the 
 judge submitted to the jury the following questions : — 
 
 First. Was there a general and established usage among printers in 
 the use of camphene for fine work in the printing of books, at the time this 
 pohcy was effected? 
 
150 IN DIFFEKENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company. 
 
 Second. Was the use of camphene necessary for fine work in the * 
 printing of books? 
 
 Third. If not necessary, was its use more advantageous than that of 
 any other article for the purposes for which it is proved to have been 
 used? 
 
 And he then charged the jury that if they answered either of the 
 questions in the affirmative, they should find a verdict for the plaintiffs 
 for the amount of the policy. The counsel for the defendants excepted 
 to the charge. 
 
 The jury answered all the above questions in the affirmative, and 
 rendered a verdict for plaintiffs for $11,278.76. 
 
 William M. Evarts, in moving for judgment for the plaintiffs upon 
 the verdict, made and argued the following points : 1. Under the finding 
 of the jury as to the necessary use of camphene in the printing of books 
 and the general established usage of the trade so to employ that article, 
 it is impossible to contend that its use by the plaintiffs, as proved, was 
 not within the special description of the subject insured and the special . 
 privilege accorded by the policy. 2. It is equally clear that the disclo- 
 sure of the subject and object of the insurance, as recited in the policy, 
 repels any suggestion of concealment of the element of risk supposed to 
 arise from this use of camphene in printing. This notice of the subject 
 of insurance, and of the purposes for which the premises in which it was 
 situated were privileged, either gave the company actual information of all 
 the elements of risk involved, or put them upon inquiry. 3. If, then, the 
 general conditions of the policy be construed as a warranty by the assured 
 against the use of camphene, the particular use within the description and 
 the privilege of the subject insured is allowed by the special terms of the 
 contract.' 4. The only remaining question is whether, though the use 
 of camphene in printing be allowed by the policy, the manner of the 
 loss exempts the defendants from liability as not being a risk insured 
 against. 6. The property insured was destroyed by fire ; fire was the 
 proximate cause and the exclusive agent of its destruction ; destruction 
 by fire was the risk insured against. 6. The originating and responsible 
 cause to which the destruction by fire is traceable is the careless, yet 
 purely casual commvmication of an ignited material to camphene, as in 
 use within the privilege of the policy, such camphene being a part of the 
 subject insured against fire. The ignition was independent of the cam- 
 phene in its origin ; that its spread on the subjects insured was through 
 the inflammability of camphene, wliich formed an incorporate part of the 
 subjects insured, does not make the camphene the occasion of the loss. 
 
 ' WivH V. Itowanl Ins. Co., U Bavb. .IS;! ; Bryant v. Poughkeopsie Ins. Co., 31 Barb. 151. 
 
li'IKE INSURANCE. l.jl 
 
 Illustrative Cases. 
 
 Campheae can, within the meaning of the policy, be regarded as occa- 
 sioning a loss by fire only when it occasions the original ignition by its 
 inflammable nature, or, at the furthest, when its use becomes the means 
 whereby the proper and ordinary use of light and fire in the premises is 
 inflamed into a destructive combustion occasioning the loss. Camphene 
 cannot be regarded as occasioning a loss by fire merely because the igni- 
 tion reaching it becomes less controllable than before ; this would be 
 equivalent to a repudiation of loss where camphene was used, although 
 its use was licensed and it was itself insured. 7. The true construction 
 of the clause in regard to loss occasioned by camphene in connection 
 with the special subject insured, which includes camphene, and the 
 special privilege accorded, which involves the use of camphene, is that 
 a loss occasioned by camphene in a relation or use outside of the 
 description and privilege is excluded from the risks assumed. 
 
 A. K. Hadley, for the defendants, made and argued the following 
 points: 1. The fire and consequent loss were occasioned by camphene, 
 and, therefore, within the express exception contained in the eighth 
 condition annexed to and forming part of the policy.' It is lawful and 
 proper in itself, and binding and conclusive upon the plaintiffs ; and this, 
 notwit'istanding the defendants may have known and assented to the 
 use of camphene.^ It was clearly competent for the defendants to 
 authorize the use of camphene, and yet screen themselves from any 
 liability on account of loss occassioned by it. They also expressly 
 authorized the use of a " steam-boiler in the yard," and yet provided 
 that " this company will not be liable for any loss, by fire or otherwise, 
 occasioned by the explosion of a steam-boiler ; ' ' and this last condition 
 the Court of Appeals, as well as this court, has already held to be valid 
 and conclusive upon the plaintiffs in the case of St. John v. American 
 Mutual Fire and, Marine Insurance Company.^ 2. All testimony tend- 
 ing to show the usage of printers and the necessity or utility of cam- 
 phene was incompetent, and improperlj'- received. First, the contract 
 being free from ambiguity, no such usage, necessity, or utility could 
 have any effect to change its purport or effect.* Second, the usage of 
 the trade in this particular was not brought home to the knowledge of 
 the defendants ; neither was it so general, so well settled, so uniformly 
 acted on, or of so long continuance, as to raise any presumption of such 
 knowledge, or that the contract was made with reference to it.^ 
 
 ' Jennings v. Chenango County Ins. Co., * Supra. 
 
 2 Dcnio, 78; Murdonk v. Chenango County ♦ Cow. & Hill's Notes, 1396, 1397, 1416, 1463. 
 
 Ins. Co., 2 N. Y.330. '-• Id. 1412, 1417. 
 
 - St. John V. American Mutual Five & ^ 
 
 Miii-ine Ins. Co., 1 Ducr, 371; II N. Y. ,518. 
 
152 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company. 
 
 By the Court, Slosson, J. — It is difficult to distinguish this case 
 from that of St. John v. Aonerican Mutual Fire and Marine Insurance 
 Company,^ and unless the privilege contained in the policy, taken in 
 connection with the general nature of the subject insured, — to wit, a 
 printing and book establishment, — creates a distinction between the 
 two, that case must be decisive of this. 
 
 The defence mainly relied upon is that the fire was ' ' occasioned by 
 camphene," a risk from which, by the eighth printed condition of the 
 policy, the company is expressly exempted. 
 
 The conditions of the policy are, by express reference to them in the 
 body of the instrument, made part of the contract, and it is provided in 
 terms that they ' ' are to be used and resorted to in order to explain the 
 rights and obligations of the parties thereto, in all cases not therein 
 otherwise specially provided for." 
 
 The camphene was kept in open sheel^iron jars or pans in two rooms, 
 one on the second and one on the third floors, expressly fitted up and 
 arranged, and supposed to be sufficiently so to prevent any dangerous 
 communication between them and other parts of the building, in case 
 of accident in the use of the article. These jars or pans were star 
 tionary. They were nearly four feet long, and the fluid was put into 
 them to the depth of from two to two and a half feet ; they were used 
 for dipping the rollers used in printing, for the purpose of cleaning 
 them. The fire was communicated to the camphene by one of the 
 workmen accidentally or carelessly dropping or throwing a lighted paper 
 or match into one of the open jars. The fire spread with immediate 
 and fatal rapidity, and the whole building, with almost its entire con- 
 tents, was destroyed, producing an immense loss. The insurance was 
 for $10,000 on the plaintiffs' "printing and book materials, stock, 
 paper, stereotype plates, fixtures, printed books, and steam-engine and 
 machinery contained in the premises in Cliff and Pearl Streets!" The 
 privilege was thus expressed: "Privilege for a printing-office, bindery, 
 and book-store, and steam-boiler in the yard." 
 
 The judge at the trial admitted, under objection, evidence of a usage 
 among printers to use camphene for fine work in the printing of books, 
 and of the necessity and advantage of its use. 
 
 It appears from the evidence that the article was used by printers in 
 cleaning rollers, wood-cuts, metal plates, and type-metal where there are 
 engravings. Most of the witnesses speak of it as a necessary article in 
 what is called fine work. Some of the witnesses speak of its having been 
 in use five years ; some, six or seven ; some, eight or ten ; and one, that it 
 
 ' 1 Duer, 371 (afflrmed 11 N. Y. 516). 
 
FIRE INSURANCE. 153 
 
 Illustrative Cases. 
 
 has been in use fourteen years. One witness says its use has been 
 general in all printing-offlees for nine or ten years ; another says he 
 knows of no printers who do fine work who do not use camphene; 
 another, however, says that he cannot say that a majority of printers 
 use it, and thinks not ; another, that it is generally used by those who 
 do iine work. The plaintiffs themselves had used it for fourteen years. 
 
 The importance of establishing a usage in the use of camphene arises 
 both from the absence of any evidence to show that when the plaintiffs 
 applied for the insurance they made known to the defendants that the 
 article was used on the premises, as they were bound to have done, it 
 being an article materially affecting the risk, and the omission of all 
 reference to it by name in' the privilege, which, it is contended, includes 
 its use. 
 
 The judge submitted three distinct questions to the jury: — 
 
 First. Was there a general and established usage among printers in 
 the use of camphene for fine work in the printing of books at the time 
 the policy was effected ? 
 
 Second. "Was camphene necessary for fine work in the printing of 
 books ? 
 
 Third. If not necessary, was its use more advantageous than that of 
 any other article for the purposes for which it is proved to have been 
 used? 
 
 And the jury were instructed that if tliey found either in the affirma- 
 tive, they should find a verdict for the plaintiffs for the amount of the 
 policy. The jury answered each question in the afflnnative, and a ver- 
 dict was taken for the plaintiffs, subject to the opinion of the court at 
 General Term. 
 
 The question of how long the usage, if the jury should find it to 
 exist, had prevailed, was not submitted to them. They have found that 
 the usage prevailed, and that the use of the article was both necessary 
 and more advantageovis than that of any other for the purpose for which 
 it was used in printing. As the jury found all the questions in the 
 affirmative, no question can arise as to which of the three formed the 
 basis of the verdict. It rests upon all ; and if the charge of the judge 
 contained a correct exposition of the law of the contract between the 
 parties, the verdict must stand, unless the omission to find how long the 
 custom to use camphene had prevailed shall be considered fatal, or 
 unless evidence of usage was inadmissible at all. 
 
 I am of opinion, considering the generality of the language employed 
 in the clause containing the privilege, that the evidence was properly 
 admitted, and I think the finding that there was a general and established 
 
154 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company. 
 
 usage among printers to use camphene, especially under the evidence 
 which shows it to have existed several years at the least, quite enough, 
 without a special finding as to the length of time it has prevailed, to 
 charge the defendants with knowledge of its existence. 
 
 The judge charged, "that, under the description of the subjects 
 insured and the privilege granted therewith, the plaintiffs are entitled 
 to recover, although the accidental fire may have been communicated to 
 or propagated through the camphene used and employed by the plain- 
 tiffs in their business, within the description and privilege of the policy, 
 if the jury should be of opinion that camphene is an article of usual, 
 necessary, or advantageous use in such, the business of the plain- 
 tiffs, within the description and privilege of the policy." 
 
 It is important here to determine what is meant by the words " occa- 
 sionedby camphene," as used in the eighth condition; for if they are 
 to be construed in the sense of originating or causing of itself a fire, the 
 condition becomes practically a dead letter. 
 
 The liquid itself can never physically originate fire — it is not self- 
 combustible; it can only occasion fire by being the immediate medium 
 of its communication to other subjects. It is in this sense, therefore, 
 that the words are to be understood ; and, thus read, the plain meaning of 
 the condition is, that the company will not be responsible for a loss by 
 fire which shall have been occasioned by means of camphene as a 
 medium of its communication, and which would not have happened but 
 for the presence of that article on the premises. The language of the 
 charge, in which the fire is spoken of as "communicated to or pro- 
 pagated through the camphene," therefore, con-ectly defines the mean- 
 ing of the words in the condition, " occasioned by." 
 
 The question then is whether, under the privilege contained in the 
 policy, — "privilege for a printing-office, bindery, and book-store," — 
 taken in Connection with the subject insured, — " printing and book mate- 
 rials, stock, paper, stereotype-plates, fixtures, printed books, and steam- 
 engines and machinery contained in, etc.," — the defendants, with 
 knowledge at the time of effecting the insurance that camphene was 
 used in the process of printing, agreed to assume the risk of a fire 
 "occasioned by camphene," against which they have expressly stipu- 
 lated in the eighth condition of the policy ; in other words, whether the 
 privilege does not supersede the condition. 
 
 There are two aspects in which this question is to be considered, and 
 in which it was argued, both depending upon the proper construction of 
 the terms of the policy. 
 
 The first is that contended for by the plaintiffs, to wit : that by per- 
 
FIRE INSURANCE. 155 
 
 Illustrative Cases. 
 
 mitting the business of a "printing-office" to be carried on upon the 
 premises, for the purposes of vhich the use of camphene was necessary, 
 and advantageous, and known to the defendants to be usual and cus- 
 tomary, they thereby, and by force of such privilege or permission, 
 assumed, £|,nd must be held in law to have assumed, the risk of a loss by 
 flre through the medium of that article, notwithstanding they are by the 
 eighth condition of the policy in terms exempted from that risk. 
 
 The other is that contended for by the defendants, to wit : that in 
 giving the privilege they have assented to the use of camphene to this 
 extent and in this sense only, to wit : that its use on the premises in the 
 business of printing, though in itself an article of extra-hazardous 
 character, shall not, under other piovisions of the poKcy, avoid the 
 contract, but that they do not thereby intend, nor upon a proper con- j 
 struction of the contract can be held to have intended, to waive the 
 benefit of the condition which exempts them from a loss occasioned 
 through its medium. In other words, that while they permit its use, and 
 agree to waive any forfeiture by reason of such use, they nevertheless 
 win not be responsible for a loss occasioned by such use. 
 
 The question is one by no means of easy solution, nor is it perhaps 
 going too far to say that its decision either way will still leave some 
 embarrassment and doubt on the mind. There are considerations which 
 make the views entertained by the defendants extremely cogent and 
 difficult to answer ; while, on the other hand, the construction given to 
 the contract by the plaintiffs is, to say the least, of equal plausibility 
 and force. 
 
 It must be borne in mind that the privilege is contained in a special 
 written clause, while the exemption is in one of the usual printed con- 
 ditions. 
 
 That every stipulation in a contract should be so construed as to give 
 it some practical operation, is a conceded rule ; and it is equally true 
 that all the stipulations in the contract must be so construed as to har- 
 monize, if possible. ' 
 
 The office of a privilege in a poKcy is to authorize the use of an 
 article or an occupation on the premises which but for such license 
 would avoid the contract. As in the present case, the business of book- 
 printing is one of the trades included in the memorandum of special 
 rates, and to carry it on upon the premises without a special authority 
 would have avoided the policy. 
 
 In the license or privilege of carrying on a particular business or 
 trade on the premises — as, in this instance, that of a printing-office — 
 must properly be included all that is necessary, essential, and cus- 
 
156 IN DIFFKRENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company. 
 
 tomary in the conduct of sucli business. If this be so, then the use of 
 camphene in printing is by necessary implication allowed in the privilege 
 to print ; but, conceding this, the question remains. Shall the company 
 be bound for a loss by fire occasioned by that article? 
 
 The defendants contend that by holding them exempt from liability 
 for Iciss while the privilege to use is conceded, both provisions or stipu- 
 lations are fuUy answered, and each party obtains what he stipulated 
 for: the plaintiffs, a right to use an article which without the privi- 
 lege would have avoided their contract altogether ; while the defend- 
 ants, thus waiving the use as a ground of forfeiture, nevertheless are 
 relieved from liability in respect to that particular article — thus sustaining 
 in full force the terms and stipulations of the eighth condition. 
 
 On the other hand, the plaintiffs say that this construction is to make 
 the privilege in a measure nugatory, and that by giving the privilege, the 
 company, upon every principle of sound sense and fair interpretation, 
 assume the whole risk incident to the customary and proper use of the 
 article ; and it is contended that this construction dees not altogether 
 dispense with the eighth condition, whose requirements, it is said, are 
 met by confining the exemption contained therein to " a loss occasioned 
 by camphene in a relation or use outside of the privilege." 
 
 This latter view of the question, it seems to us, after a careful con- 
 sideration of the whole subject, is the true one. If the privilege is to 
 be construed by the usage at all, and the usage be a reasonable use, it 
 is to the extent of such usage a limitation of, or exception from the 
 stipulations of the condition. So, also, if the privilege is to be con- 
 strued in reference to what are the necessary means of securing its 
 enjoyment, as it unquestionably must be, then it embraces all the means 
 necessary to the business of printing, and to the fuU extent of such 
 necessity is a limitation of, or exception froni the terms of the condition. 
 The condition is not, however, left a dead letter in the contract, for the 
 moment the point of usage or necessity is passed it becomes as operative 
 as ever. It therefore stands for every purpose not specially excepted 
 by the privilege. This construction seems to us both reasonable and 
 just, and the only one by which effectual justice will be secured. 
 
 It is contended by the defendants that, however the use of camphene 
 in small quantities ma^' be fairly held to be within the privilege, its use 
 to the extent shown in the present case cannot reasonably be held to 
 have been within the contemplation of the parties at the time of under- 
 wi'iting this policy, and that therefore the exemption covenanted in 
 the condition remains in full force. 
 
 This was made a point on the motion for a nonsuit, and it was con- 
 tended that such a use of the article was ' ' not in accordance with any 
 
FIEE INSURANCE. 
 
 157 
 
 Illustrative Cases. 
 
 known custom or usage, with notice of wliicli the defendants were pre- 
 sumed to be cognizant or chargeable, and was a fact and feature in the 
 risk which increased its hazard." This mode of using camphene is not, 
 according to the evidence, confined to the plaintiffs. WiUi'ams, a printer 
 in the Methodist Book Concern, says they use it in that establishment as 
 the plaintiffs do, to wit: " immerge the plates and rollers in tubs con- 
 taining the article;" and Brown, the superintendent of the printing 
 department in the American Tract Society, says that rollers are used in 
 all printing-offices. 
 
 It is a fair inference, from this evidence, that this mode of using cam- 
 phene is a part of the general usage or custom ; and if so, it was equally 
 within the knowledge of the defendants as the fact of its use at all. It, 
 therefore, was unnecessary to have made a special explanation in respect 
 to it on applying for the insurance ; and if the use of the article at all 
 was within the privilege by reason of the usage, as we have shown it 
 was, its use in this particular mode was equally so. 
 
 Nor does it foUow that the privilege, if extended thus far, is neces- 
 sarily unlimited ; any abuse of it would clearly defeat a recovery. Like 
 all other stipulations in a contract, it must not only be reasonably con- 
 strued, but acted upon in good faith. The evidence does not show that 
 more of the article was used in the present instance than was absolutely 
 necessary for the purpose of the printing authorized by the privilege ; 
 and it would be hard to say, if not difficult to comprehend, that though 
 the use of it in a smaller quantity might have been embraced within the 
 pri^olege, its use in quantities adequate to the necessities of so large an 
 estabhshment as the plaintiffs' was not so embraced. The answer would 
 be obvious : that the magnitude of the risks assumed was in proportion to 
 the magnitude of the subject the defendants had undertaken to insure. 
 There must be judgment for the plaintiffs for the amount of the 
 
 verdict, and interest., 
 
 Judgment for the plaintiffs. 
 
 [Same case, on appeal, In the Court of Appeals of New York, December, 
 
 I860.*] 
 
 Hon. George 5". Comstock, Chief Judge. 
 
 " Hiram D&nio, 
 
 " Henry E. Davies, 
 
 " Samuel L. Selden, 
 
 " Thomas W. Clekkb, Y judges. 
 
 " Wii-LiAM B. Weight, 
 
 " WirxiAM J. Bacon, 
 
 " Henry Welles. 
 
 » Reported 23 N. Y. 441. 
 
158 IN DirFERENT RELATIONS AND OCCUPATIONS. 
 
 Harper v. City Insurance Company, 
 
 Appeal from the Superior Court of the City of New York. 
 
 Action upon a policy of fire insurance on the plaintiff's " printing and 
 book materials, stock, paper, stereotype plates, fixtures, printed books, 
 and steam-engine and machinery contained in [certain described prem- 
 ises] , and privileged for a piinting-offiee, bindery, and book-store. ' ' The 
 policy provided, in its printed conditions, that if the premises should be 
 used for carrying on any business denominated hazardous, or extra- 
 hazardous, or specified in the memorandum of special rates, or for 
 storing articles in either of those categories, without a special agree- 
 ment in the policy therefor, so long as such use should continue, the 
 policy should be of no force. "Stocks of booksellers" and "printers 
 of books " were specified under the head of extra-hazardous, and the 
 business of "printers of books " in the memorandum of special rates. 
 Upon the trial, it was proved that the plaintiffs' establishment was the 
 most extensive for the printing of books in the country ; and the jury 
 found specifically, in answer to interrogatories, that the use of camphene 
 was general among printers for fine work in the printing of books, 
 for cleaning ink-rollers, washing stereotype plates, etc., and that such 
 use was not only more advantageous than that of any other article, but 
 necessary. The fire was occasioned by a workman throwing a Ughted 
 match into a pan upon the floor, containing camphene. There was a 
 Verdict for the plaintiffs, subject to the opinion of the court; and judg- 
 ment having been rendered thereon at General Term, the defendants 
 appealed to this court. 
 
 John H. Reynolds, for the appellant; William M. Evarts, for the 
 respondents. 
 
 CoMSTOCK, C. J. — The jury found, in answer to interrogatories spe- 
 cially submitted to them^ that the use of camphene in the manner proved 
 was according to a general and established usage in the printing and 
 book business as carried on by the plaintiffs, and that such use was 
 necessary in that business. In the written part of the policy the subject 
 of insurance is described as the plaintiffs' printing and book materials, 
 stock, etc., "privileged for a printing-office, bindery, etc." The lan- 
 guage is identical with that contained in the policy which was before us in 
 the case of Harper v. Albany Insurance Company.^ We there held, for 
 reasons which need not be repeated, that the insurers were liable for 
 a loss occasioned by the necessary and customary use of camphene in the 
 plaintiffs' business, although the use of that article was prohibited in 
 general terms in the printed conditions annexed to and forming a part 
 of the contract. In that case, the printed form of the policy, if con- 
 
 ' 17 N. Y. 19*. 
 
FIRE INSURANCE. 15^ 
 
 Illustrative Cases. 
 
 straed without reference to the subject of insurance as described in the 
 written part, proscribed the use or presence of campheiie for any pur- 
 pose. In this case, the printed condition declares in substance that if 
 the article is used, and a loss is occasioned thereby, the insurer will not 
 be liable. There is no other distinction between the two cases. 
 
 And this distinction is not one of principle. In the case cited we 
 found no irreconcilable repugnancy between the written and printed 
 clauses of the contract. If such a repugnancy had been discovered, 
 then, as the court said, the printed form must yield to the more careful 
 and deliberate written language of the parties in describing the subject 
 of insurance at the very moment when the policy was issued. But it 
 was considered that each clause might take effect. By insuring the 
 plaintiffs' stock, with the privilege of a printing-office and book-bindery, 
 the use of such materials, including camphene, as were necessary in 
 that business was allowed ; otherwise the contract was a mere delusion. 
 But the restraining clause might nevertheless have its full effect upon 
 the use of camphene for the purposes of light, and for aU purposes 
 beyond its necessary connection with the stock and business insured. 
 So, in this case camphene must be considered as a part of the stock 
 insured. Its continued presence and use were allowed, because the 
 business which required its use was expressly privileged. The printed 
 condition exempting the underwriters from loss when occasioned by this 
 article should therefore be construed as referring to uses not within 
 the privilege thus granted; otherwise, the two parts of the contract 
 are repugnant to each other, and the printed form must yield to the 
 deliberate written expression. An insurance upon the plaintiffs' stock 
 and business, to be of no effect if a loss should be occasioned by the 
 combustion of an article constituting a part of that stock and neces- 
 sarily used in the business would, I think, be an anomalous under- 
 taking. Undoubtedly, such a contract might be made. A policy can be 
 so framed as to allow the presence of a dangerous article, and even so 
 as to insure its value, while at the same time it might exempt the insurer 
 from loss if occasioned by the presence or use of the article. But I 
 think it would need very great precision of language. to express such an 
 intention. Where camphene or any hazardous fluid is insured, and its 
 use is plainly admitted, the dangers arising from that source are so 
 obviously within the risk undertaken that effect should be given to the 
 policy accordingly, unless a different intention is verj' plainly declared. 
 And such intention, instead of being hid away in printed forms remote 
 from the principal contract, ought to be found in the delibei-ate expres- 
 sions which are made use of at the time when the contract is entered 
 
11)0 liV DIFFliRENT RELATIONS AND OCCUPATIONS, 
 
 Walsh V. Homer. 
 
 into. Without doubt, all tlie printed conditions and specifications 
 annexed to a policy are, or at least may be, a part of it. But they relate 
 to insurance in general, as practised by the underwriter, and upon or 
 within those forms the parties to each policy actually issued write their 
 own particular intention. The plain meaning of the written part should 
 therefore prevail, and other clauses must yield, if repugnant, or they 
 must be construed so as to avoid a conflict of intentions. In this case, 
 I think the perils of keeping and using camphene were insured against, 
 so far as the keeping or use of it was permitted at aU, and that the 
 clause which exempts the insurer from liability should be understood as 
 applying to the presence of the article under other conditions. 
 
 The judgment should be affirmed. 
 
 Davtes, Wright, Bacon, and Welles, JJ., concurred ; Selden, Denio, 
 and Clerke, JJ. , dissented. 
 
 Judgment affirmed. 
 
 16. marine insurance — usage may excuse a deviation. 
 
 Walsh v. Homer.* 
 
 In the Supreme Court of Missouri, March Term, 1846. 
 
 Hon. William B. Napton, ■) 
 " William Scott, > Judges. 
 
 " Prbistly H. MoBridb, j 
 
 Evidence that It is the usage ol the carrying trade lor one boat on a voyage to stop and 
 aid another boat in distress, is competent to show that such is not a deviation. 
 
 Appeal from the St. Louis Circuit Court. 
 
 Gamble & Bates, for the appellants ; Geyer & Spaulding, for the ap- 
 pellee. 
 
 Scott, J. , delivered the opinion of the court. 
 
 This was an action on the case, brought in the St. Louis Circuit Court 
 by the appellee, as surviving partner of the firm of J. & T. J. Homer, 
 against the appellants, as owners of the steamboat Rolla, to recover for 
 the loss of certain goods shipped on board that boat at New Orleans. 
 The verdict and judgment were in favor of the plaintiff below, and the 
 cause is brought into this court by appeal. 
 
 The first count of the declaration sets forth a policy of insurance on 
 goods of the plaintiff made by the St. Louis Perpetual Insurance Com- 
 pany, and alleged that goods covered by the policy were shipped on 
 
 • Reported 10 Mo. 6. 
 
MARINE INSUKAKCE. 161 
 
 Illustrative Cases. 
 
 board the RoUa, of which the defendants were the owners, at New 
 ■Orleans, to be transported to St. Louis ; that during the voyage the 
 master of the Rolla deviated, etc., and detained and employed the boat, 
 with the goods of the plaintiff on board, in relieving the steamboat 
 •George Collier, which was aground in the Mississippi, and in transport- 
 ing goods from the Collier to the shore, no life being in danger ; and 
 that although the Rolla did, after such detention, etc., proceed on the 
 voyage with the goods on board, yet the said steamboat Rolla, with the 
 said goods and merchandise, by reason of the said defendants, their 
 servants, and agents in that behalf, not proceeding therewith from New 
 Orleans aforesaid to St. Louis aforesaid as soon as they were reasonably 
 able, by and according to the direct, usual, and customary way and 
 passage, but, on the contrary thereof, deviating, departing, touching, or 
 remaining, continuing, and being delayed as in that behalf aforesaid, 
 and before her arrival at St. Louis aforesaid, at the county aforesaid, 
 was exposed to and assailed by storms and other perils on the Missis- 
 siijpi near a certain island called Island No. 21, and th,en and there was 
 run and driven on a snag or other hard substance, and was wrecked, 
 shattered, and broken, by means whereof the same goods, etc., of plain- 
 tiff on board said boat were wetted, damaged, spoiled, and sunk, and 
 wholly lost to the plaintiff, and by reason of said deviation, departure, 
 detention, and stoppage of the said steamboat Rolla, with the said 
 goods, etc., on board, by the defendants, their servants, and agents, as in 
 that behalf aforesaid, the said insurers in the said policy of insurance 
 mentioned became and were discharged from all liability for or on 
 account of the said damage and loss, or any part thereof. 
 
 The second and third counts are, in substance, the same as the first. 
 The fourth count is in the ordinary form against ciarriers for the loss of 
 goods, averring that the defendants did not safely and securely carry 
 and deliver the goods according to their undertaking, but, on the con- 
 trary, so improperly behaved and conducted themselves with respect to 
 said goods, that by and through the mere negligence, misconduct, and 
 default of the defendants, their servants, and agents, the goods were 
 lost. 
 
 The defendants pleaded not guilty. At the. trial, the plaintiff gave in 
 evidence the policy of insurance and the indorsements thereon, and 
 offered evidence conducing to prove the shipment of goods covered by 
 that policy on board the Rolla, at the time and for the voyage mentioned. 
 Parts of the evidence on this point were objected to, but the objections 
 were overruled. That George Taylor was the master, and the defend- 
 ants owners of the boat; that, on the progress of the voyage, the Rolla 
 
 11 
 
162 IN OH^FKKKNT KKLAT10N8 AND OCCUPATIONS. 
 
 Walsh V. Homer. 
 
 was detained and employed in relieving the Collier, then aground, by 
 transporting goods from that vessel to the shore, and in attempting to 
 pull her off the bar by the power of the RoUa ; that the Rolla afterwards 
 proceeded on the voyage, and was wrecked as alleged, and the goods 
 of the plaintiff lost. 
 
 Witnesses testified that from the commencement of steam navigation 
 on the Western waters it had been the uniform usage and custom of all 
 boats, when meeting another boat aground, to afford any assistance in 
 their power ; and although it was the uniform practice to charge for such 
 service, yet no stipulation for such compensation was made before fur- 
 nishing the aid required. This usage was generally known to merchants 
 and insurers. 
 
 It was proved that after the opinion of this court in the case of Settle 
 v. St. Louis Perpetual Insurance Company,^ the different insurance com- 
 panies at St. Louis inserted in their policies a clause to the effect that in 
 case of loss after deviation to give succor to a vessel in distress, the loss 
 should te pai4, notwithstanding the de^dation, ' ' upon the assured 
 assigning to the company all claims he or they may have against the 
 owners of such steamboat in consequence of such deviation, and author- 
 izing the company to use his name to enforce such claim for the benefit 
 of the company." 
 
 The plaintiff moved the court to give to the jury the following instruc- 
 tions, which were given, to which the defendants excepted, viz. : " If the 
 jury find that goods of the plaintiff covered by the policy in the decla- 
 ration mentioned were shipped on board the steamboat Rolla at New 
 Orleans, to be carried to the port of St. Louis ; that said boat departed 
 from New Orleans on said voyage with the said goods on board, and 
 that during the voyage said steamboat Rolla, with said goods on boar(}, 
 was stopped and detained, without the consent of the plaintiff, for the 
 purpose of assisting the steamboat George Collier, then aground in the 
 Mississippi River, and that the Rolla was there used and employed in 
 transporting cargo from the Collier to the shore, and in attempting to 
 draw the said Collier into deeper water, such detention and employment 
 was a deviation which discharged the underwriters from any subsequent 
 loss of said goods on board the Rolla during that voyage. 
 
 "If the jury find from the evidence that goods of the plaintiff cov- 
 ered by the policy in the declaration mentioned were shipped on board 
 the steamboat Rolla at New Orleans, to be carried to St. Louis ; that 
 said goods, during the voyage, were lost by a peril insured against, and 
 that the underwriters were discharged from liability for such loss by 
 
 > 7 Mo. 379. 
 
MARINE INSUBANCE. 163 
 
 Illustrative Cases. 
 
 reason of the previous deviation of said boat by tlie voluntary act of the 
 master, then the owners of the Kolla are liable for such loss." 
 
 The defendants then asked the following instructions, which were 
 refused, to which an exception was taken, viz. : — 
 
 "That the jury must find for the defendants on the three first counts 
 in the declaration, unless they find from the evidence that the loss of the 
 goods and merchandise in those counts mentioned was actually occa- 
 sioned by the alleged deviation from the usual course of the voyage 
 in said counts mentioned, respectively. 
 
 "The plaintiff cannot recover on the first count in Ms declaration 
 for the loss of the goods therein mentioned, unless it appears to the 
 satisfaction of the jury, from the evidence, that the sinking of the 
 steamboat RoUa was occasioned by the alleged deviation in that count 
 mentioned. 
 
 " That the plaintiff cannot recover on the second count of his decla- 
 ration for the loss of the goods therein mentioned, unless it appears to 
 the satisfaction of the jury, from the evidence, that the sinking of the 
 steamboat Kolla was occasioned by the alleged deviation in that count 
 mentioned. 
 
 "That the plaintiff cannot recover on the third count of his decla- 
 ration for the loss of the goods therein mentioned, unless it appears to 
 the satisfaction of the jury, from the e\'idence, that the sinking of the 
 steamboat Eolla was occasioned by the alleged deviation in that count 
 mentioned. 
 
 " That if the jury find from the evidence that at the time of the loss 
 of the Kolla there was, and for many years previous had been, a custom 
 and usage in the navigation of the Mississippi River for steamboats 
 navigating said river to stop in their voyage and furnish assistance to 
 other steamboats aground in said river and in distress, and that such 
 custom and usage was general, and generally known to merchants, 
 owners of boats, and insurers concerned in the navigation of said river, 
 and that the captain and crew of the steamboat Kolla, in the alleged 
 deviation to succor the steamboat George Collier, aground in the Missis- 
 sippi, did no act and suffered no detention of said steamboat Kolla 
 beyond or out of the said custom aad usage, then the defendants are 
 not responsible for any act of the said captain or crew which is within 
 said custom or usage." 
 
 The principal question in this cause was before this court in the case 
 of Settle V. St. Louis Perpetual Insurance Company.^ In that suit, the 
 policy of insurance was executed by the same company, the shipment 
 
 1 7 Mo. 379. 
 
164 IN DIFFERENT EELATION8 AND OCCUPATIONS. 
 
 Walsh V. Homer. 
 
 was for the same voyage, on the same vessel, and the loss by the same 
 disaster as is alleged by the declaration in this case. In the above- 
 mentioned cause the point most debated was whether the detention of a 
 vessel in the navigation of the Mississippi for the purpose of succoring 
 another vessel in distress, when no life was in danger, was a deviation 
 or not. Except in the case mentioned, it does not appear that this 
 question has come up for adjudication. Eminent judges and elementary 
 writers, influenced by the benevolence and humanity of our law, have 
 not hesitated to declare that a detention on a voyage at sea to relieve a 
 vessel in distress is not an act which would discharge the underwriters 
 to a policy of insurance from the liability to the assured, in the event 
 of a loss of the vessel affording the succor. Some have said that a 
 deviation to save life or to succor persons in distress was allowable, but 
 that a deviation for the purpose of saving property would discharge the 
 underwriters. On our rivers, boats may be in danger when the Uvea of 
 the crew and passengers are entirely safe, but in ocean navigation a 
 vessel can scarcely be in distress unless the lives of those on board are 
 at the same time endangered. Hence the language of the books, that a 
 detention to succor vessels in distress is not a deviation that would dis- 
 charge the underwriters. Judge Sprague, who maintained the doctrine 
 that a stoppage to succor vessels in distress is not a deviation which 
 would discharge the policy, yet holds that, under the pretence of suc- 
 coring distress, it was not allowable to become wreckers at the risk of 
 the insurer. So Judge "Washington ^ says: " The general definition of 
 deviation is a voluntary departure from the course of the voyage insui'ed, 
 without necessity or reasonable cause, and I recollect no case where the 
 justification is not essentially connected with the motive of safety to the 
 property insured. If the object of the deviation be to save the life of 
 a man, I will not be the first judge to exclude such a case from the 
 exceptions to the general rule. ' ' 
 
 In the case of Settle v. St. Louis Perpetual Insurance Company it was 
 admitted that no life was in danger, and of the two questions in that 
 case, — whether a detention to relieve vessels in distress when no life was 
 in danger would discharge a policy, and whether there was a usage in 
 the inland navigation of our rivers which would justify a deviation for 
 such a purpose, — the first was most elaborately argued at the bar, and it 
 did appear that it was a turning-point of the cause. I am not prepared 
 to say that the conclusion to which this court arrived on the foiiner of 
 these questions was erroneous. 
 
 In adopting the form of the policies used in marine insurance, it must 
 
 » Bond V. The Cora, 2 Waali. 0. Ct. 84. 
 
MARINE INSURANCE. 165 
 
 Illustrative Cases. 
 
 have been understood that they should receive their long-accustomed 
 interpretation. No case, I imagine, can be found in the law of iharine 
 insurance in which it was held that a deviation to assist a vessel as little 
 exposed as the Collier was a justifiable deviation. Conlr-icts of insur- 
 ance are said to be viberri maloefidei. The vessel and cargo are in the 
 possession and under the control of persons who, relying on the policy 
 for an indemnity against losses, are stimulated to acts which the dictates 
 of self-interest would effectually restrain, while those who are mostly 
 interested in their preservation, and are liable to make good any losses 
 that may occur, are at a great distance. Any latitude of discretion 
 allowed to masters of vessels under such circumstances would lead to 
 the grossest frauds on underwriters. The reasons which govern in 
 moulding the law in relation to the responsibility of common carriers 
 lie at the foundation of the rule prescribing the duties of the masters of 
 vessels in respect to those who have made themselves responsible for 
 their loss by insilrance. The law fixing the responsibility of common 
 carriers is, as Lord Holt observes, "a politic establishment contrived 
 by the policy of the law for the safety of all persons, the necessity of 
 whose affairs obliges them to trust these sorts of persons, that they may 
 be safe in their dealings. For else these carriers might have an oppor- 
 tunity of undoing all persons that had any dealing with them, by com- 
 bining with thieves, etc., and yet doing it in such a clandestine manner 
 as would not be possible to be disf overed ; and this is the reason the law 
 is founded upon in that point." The law requires that a voyage should 
 be performed with all practicable, safe, and convenient expedition. The 
 impossibility, in many eases, of determining whether a subsequent loss 
 has been caused by a previous detention is the reason that vessels 
 ' insured are not permitted, at the risk of the insurer, to stop on their 
 voyages, unless in cases of necessity. A very short detention may be 
 the cause of loss of a vessel, and yet the keenest attention will not be 
 able to detect and expose the train of incidents which connect the two 
 events. Hence it has always been settled that a departure from the 
 usual course of a voyage, or a detention during it, without necessity or 
 justifiable cause, was an act which would discharge the underwriters in 
 the event of a subsequent loss. By the terms of the contract, the 
 insurer only runs the risk of the voyage agreed upon, and no other. It 
 is a condition implied in the poUcy that the ship shall proceed to her 
 port of destination by the shortest and safest course, and with all prac- 
 ticable, safe, and convenient expedition ; and if the assured deviated or 
 stopped on the voyage without necessity or a justifiable cause, it is a 
 breach of the implied warranty, the effect of which is to discharge 
 
166 IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Walsh V. Homer. 
 
 the underwriters from all subsequent responsibility, not because the risk 
 is thereby increased, but because the insured had, without necessity, 
 substituted another voyage for that which was insured, and thereby 
 varied it. By the contract, the voyage is to be performed with all prac- 
 ticable speed. After a detention, the vessel at any time during her sub- 
 sequent voyage is at a different place from that at which she would have 
 been had it not been for the detention. Had she been at the place 
 where a speedy voyage would have taken her, the combination of cir- 
 cumstances which occasioned the loss might not have taken place. The 
 agency this circumstance had in producing the event may be unknown, 
 and as the master cannot show that it had none, there is no hardship in 
 making him suffer the consequence, as his unjustifiable act may have 
 been the cause of it. 
 
 The foregoing principles are applicable to insurances on voyages 
 exempt from the control of anj"^ custom or usage ; but the courts all 
 concur in the opinion that when the insurance is described to be on a 
 particular voyage, the meaning of this description, as well as the lan- 
 guage used by the parties in other parts of the policy, must be ascer- 
 tained by its general acceptation and the common usage. The meaning 
 of the parties is to be presumed to be that the voyage is to be pursued 
 in the most direct and safe course, and the adventure conducted, in 
 general, in the most expeditious manner, as far as is consistent with 
 safety ; and if there be any departure from such course or mode of 
 conducting the adventure whereby the risks insured against are varied 
 or increased, it behooves the assured to justify such departure by show- 
 ing a usage in that respect, or a reasonable necessity for it. ' Chancellor 
 Kent remarks that one cause of litigation in the courts on the subject 
 of deviation is as to the facts and circumstances which wiU be sufficient 
 to justify it on the ground of usage or necessity. ^ Where there is a 
 known usage as to the course, or touching at particular ports, or any- 
 thing else in the conduct of the voyage, the p.irties are supposed to he 
 acquainted with such usage, and have it in view when they enter into the 
 contract.* In the case of Noble v. Kennoway,* Lord Mansfield said: 
 " Every underwriter is presumed to be acquainted with the practice of 
 the trade he insures, and that whether it is recently established or not. 
 If he does not know it, he ought to inform himself. It is no matter if 
 the usage has only been for a year." The Supreme Court of the United 
 States, in Columbian Insurance Companv v. Catlett,^ says that the true 
 meaning of a policy is to be sought in an exposition of the words with 
 
 • 1 Ph. on Ins. 480. » 1 Doug. 513. 
 
 'J 3 Kent's Comm. 312. 5 12 Wheat. 386, 387. 
 
 ■' 1 I'll, on Ins. 489. 
 
MARINE INSURANCE. ll>7 
 
 Illustrative Cases. 
 
 reference to the known course and usage of the trade. The parties 
 must be supposed to contract with a tacit adoption of it as the basis of 
 their engagements. Without question, any unreasonable delay in the 
 •ordinary progress of the voyage avoids the policy on this account. But 
 what delay wUl constitute such a deviation depends upon the nature of 
 the voyage and the usage of the trade. In the case of Clark v. United 
 Marine and Fire Insurance Company,^ Judge Sew all says that " ques- 
 tions are continually arising on the operation and practical construction 
 of policies of insurance, a species of contract liable to a variety of 
 incidents, and to be enforced in a great number of cases distinguishable 
 from each other in the principles applicable to the decision. For rules 
 to govern in these inquiries there is more than ordinary reference to 
 established usages ; and these, when ascertained, and found to be suit- 
 able applications of general principles, or not inconsistent with them or 
 with the tenor of the contract to be explained and enforced, are con- 
 sidered as authoritative upon the parties. A reference to usage is fairly 
 implied in contracts of a commercial nature, and it is to be presumed, 
 indeed, in the construction of contracts generally, where the conclusion 
 is not avoided by special circumstances or stipulations." In the case of 
 Gordon v. Little,^ Judge Gibson, who denied that evidence of usage or 
 custom fixing the construction of the words in a biU of lading is admis- 
 sible, fully recognizes the relaxation of the common-law rules of evidence 
 in the case of a policy, and admits that the usage of every particular 
 trade necessarily enters into every policy, and is resorted to for the 
 purpose of explaining and even controlling those parts of the instru- 
 ment that are merely formal. 
 
 These instances are sufficient to show that the construction of eon- 
 tracts of insurance are peculiarly influenced by usage ; that evidence of 
 usage is received for the purpose of ascertaining the sense and under- 
 standing of parties by their contracts, which are made with reference to 
 such usage or custom ; and that the custom then becomes a part of the 
 contract, and may be considered as the law of it. Policies in the same 
 terms will receive diffierent interpretations as applied to different voy- 
 ages. There is nothing in the usage relied on in this case as a justi- 
 fication for the detention which would condemn it on the score of 
 impolicy. As the services are always rendered for a remuneration, not 
 much can be said in behalf of the humanity of the usage. That can 
 only be vindicated by a gratuitous service, and making those rendering 
 assistance their own insurers. It is admitted that the usage relied on as 
 a justification for the detention to succor vessels in distress is coeval 
 
 1 7 Mass. 365. 2 8 Sevg. & K. 562, ante, p. 123. 
 
168 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Walsh V. Homer. 
 
 with steamboat navigation on the Mississippi River. It must be pre- 
 sumed to have been known to all those who in any way have been 
 affected by it. Contracts of insurance must be supposed to have been 
 made with an eye to its existence. Is not the long existence of the 
 usage some evidence of its policy ? Had it been found contrary to the 
 public good, would not the keen and steady sense of their interests have 
 induced commercial men to demand its abolition, or to have guarded 
 against it by stipulations in their contracts ? This has not been done. 
 The practice still continues ; and we must presume that the master, the 
 shipper, and the insurer all find advantages in maintaining and support- 
 ihg it. The boat that renders assistance to-day may, in her turn, want 
 it to-morrow. A boat of comparatively little value may be destroyed 
 to-day which the day before had been detained in saving from destruc- 
 tion one worth thousands, and both may have been insured by the same 
 underwriters. Experience must have shown that in such adventures a 
 reciprocity of kind offices promotes, upon the whole, the interests of 
 every one concerned in them. The abuse of this usage in our inland 
 navigation to the prejudice of underwriters cannot be carried to the 
 excess to which it might extend in the navigation of the ocean. The 
 facility of obtaining witnesses to a breach of duty by tlie master would 
 tend greatly to check all approaches to misconduct on his part. 
 
 I am free to confess that the change in the form of the policy of 
 insurance which was made by the insurancec ompanies in St. Louis after 
 the decision in the case of Settle v. St. Louis Perpetual Insurance Com- 
 pany has had its influence on my mind in the determination of this 
 cause. If the law was declared in that case as it had previously been 
 understood, why make the change ? That change shows that the defence 
 set up by the company in the above-mentioned case was unjust; thattlie 
 understanding of the parties was that a detention to save vessels in dis- 
 tress was justifiable. I had my doubts how far the usage set up should 
 operate in the construction of the contract ; but, now that the solemn 
 admission is made of record that the usage was in fact, and not merely 
 in the eye of the law, in the contemplation of the parties at the time of 
 entering into the contract, and as there is nothing in that usage contrary 
 to the policy of the law, I can see no ground for withholding from it 
 its full effect. The peculiar phraseology adopted in making the alter- 
 ation in the contract of insurance cannot disguise its real object. I am 
 glad it is yet in the power of the court to correct the irregularity of the 
 former decision. Pride of consistency shall never induce me to persist 
 in error. 
 
 Napton, J., concurring, the judgment will be reversed. 
 
 Judgment reversed. 
 
LANDLORD AND TENANT. 169 
 
 Illustrative Cases. 
 
 16. LANDLORD AND TENANT — CUSTOM AS TO WAYGOING CROP. 
 WiGGLESWORTH V. DaLLISON.* 
 
 In the Court of King's Bench, Trinity Term, 1779. 
 
 William, Earl Mansfield, Lord Chief Justice. 
 Edward Willes, Esq., \ 
 
 Sir William Henry Ashhurst, Kt., \ Justices. 
 Francis Bullbr, Esq., j 
 
 A custom that a tenant, whether of parol or deed, shall have the waygoing crop after the 
 expiration of his term, if not repugnant to the lease, is good. 
 
 Tms was an action of trespass for mowing, carrying away, and con- 
 verting to the defendants' own use the corn of the plaintiff, growing in 
 a field called Hibaldstow Leys, in the parish of Hibaldstow, in the 
 county of Lincoln. The defendant DaUison pleaded liberum tene- 
 mentum, and the other defendant justified as his servant. The plaintiff 
 replied, that true it was that the loctts in quo was the close, soil, and 
 freehold of DaUison; taut, after stating that one Isataella DaUison, 
 deceased, taeing tenant fcr Kfe, and DaUison, the reversioner in fee, 
 made a lease on the 2d of March, 1753, by which the said Isabella 
 demised and the said DaUison confirmed the said close to the plain- 
 tiff, his executors, administrators, and assigns, for twenty-one years, to 
 be computed from the 1st of May, 1755, and that the plaintiff, by virtue 
 thereof, entered and continued in possession till the end of the said term 
 of the twenty-one years, he pleaded a custom, in the following words, 
 viz. : "That within the parish of Hibaldstow there now is, and from time 
 whereof the memory of man is not to the contrary there hath been, a cer- 
 tain ancient and laudable custom there used and approved of : that is to 
 say, that every tenant and farmer of any lands within the same parish, 
 for any term of years which had expired on the first day of May in any 
 year, hath been used and accustomed, and of right ought to have, take, 
 and enjoy to his own use, and to reap, cut, and carry away when ripe 
 and fit to be reaped and taken away, his waygoing crop : that is to say, 
 all the corn growing upon the said lands which hath before the expiration 
 of such term been sown by such tenant upon any part of such lands, not 
 exceeding a reasonable quantity thereof, in proportion to the residue of 
 such lands, according to the course and usage of husbandry in the same 
 parish, and which hath been left standing and growing upon such lands 
 at the expiration of such term of years." He then stated that in the 
 
 * Reported Dong. 301. ; 1 Smith's Ld. Cas. 900. 
 
170 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Wigglesworth «. Dallison. 
 
 year 1775 he sowed with corn part of the said close, being a reasonable 
 part in proportion to the residue thereof, according to the course and 
 usage of husbandry in the said parish, and that the com produced and 
 raised by such sowing of the com so sown as aforesaid, being the corn 
 in the declaration mentioned, at the end of the term, and at the time of 
 the trespass committed, was standing and growing in the said close, the 
 said time not exceeding a reasonable time for the same to stand in order 
 to ripen and become fit to be reaped, and that he was during all that 
 time lawfully possessed of the said com as his absolute property, by 
 virtue of the custom. The defendant, in his rejoinder, denied the 
 existence of any such custom, and concluded to the contrary. Thfe 
 cause was tried before Eyre, B. , at the last Assizes for Lincolnshire, 
 when the jury found the custom in the words of the replication. 
 
 Baldwin moved, in arrest of judgment, that such a custom was repug- 
 nant to the terms of the deed, and, therefore, though it might be good in 
 respect to parol leases, could not have a legal existence in the case of 
 leases by deed. He relied on Trumper v. Carwardine, before Yates, 
 J.,1 the circumstances of which case were these: — 
 
 ' ' The plaintiff had been lessee under the corporation of Hereford for 
 a term of twenty-one years, which expired on the 4th of December, 
 1767. In the lease there was no covenant that the tenant should have 
 his offgoing crop. In the seed-time before the expiration of the term 
 he sowed the fallow with wheat. The succeeding tenant obstructed him 
 in cutting the wheat when it became ripe, and cut and housed it himself-, 
 for his own use. Upon this the plaintiff brought an action on the case, 
 and declared on a custom in Herefordshire for tenants who quit their 
 farms at Christmas or Candlemas to reap the corn sown the preceding 
 autumn. Yates, J., held that the custom could not legally extend 
 to leases by deed, though it might prevail by implication in the ease of 
 parol agreements ; that, in the case of a lease by deed, both parties 
 are bound by the express agreements contained in it, — as, that the term 
 shall expire at such a day, etc. , — and therefore all implication is taken 
 away ; that if such a custom could be set up, the Statute of Frauds 
 would be thereby superseded in Herefordshire.® Accordingly, the plain, 
 tiff did not recover on the custom, although on another count (in trover) 
 in the same declaration he had a verdict." 
 
 A rule to show cause was granted. 
 
 ' At the Summer Assizes for Hereford- lease for three years could be extended in 
 
 shire, 1769. some degree for half a year longer by such a 
 
 2 Qu<Bre. Xhia argument seems more ap- custom, it might be said that this would be 
 
 plicable to parol leases, because, if a parol repugnant to the Statute of Frauds. 
 
LANDLORD AND TENANT. 171 
 
 Illustrative Cases. 
 
 The case was argued on Tuesday, the 8th of June, by Hill, Serjt., 
 Chambre, and Dayrell for the plaintiff, and Cust, Baldwin, Balguy, 
 and Goiigh for the defendants, when three objections were made on 
 the part of the defendants, viz. : (1) that the custom was unreasonable ; 
 (2) that it was uncertain; (3) that, as has been contended on moving 
 for the rule, it was repugnant to the deed under which the plaintiff had 
 held. 
 
 For the plaintiff it was argued: First, that it was not an unreasonable, 
 custom, because, without an express agreement, or such a custom as 
 this, there would be no crop the last year of the term, for the tenant 
 would not sow if he could not reap, and the landlord would not have a 
 right to enter until the expiration of the term ; that it was for the ad- 
 vantage of the public as much as customs for turning a plough or drying 
 nets on another person's land, which had been held to be good; ^ that 
 it bore a great analogy to the right of emblements, and was founded on 
 the same principle, namely, the encouragement of agriculture. It was 
 not prejudicial to any one : not to the landlord, because without it his 
 land must be unemployed and unproductive for a whole season ; nor to 
 the succeeding tenant, because he would have his turn at the end of the 
 term. Second, that it was sufficiently certain, by the reference to the 
 residue of the lands not sown, and to the course and usage of husbandry 
 in the parish. This is as much certainty as the nature of the subject wiU 
 admit of ; for, if it had been that so many acres might be sown and 
 reaped, that would have been incompatible with those variations in the 
 proportion of ploughed land which arise at different times, from cir- 
 cumstances in the course of cultivation and husbandry. " Reasonable " 
 is an epithet which sufficiently qualifies the extent of customs, and is 
 generally used in pleading them — as, with regard to customary fines paid 
 to the lord of a manor, estovers prescribed for by a party to be taken 
 for the use of his house, etc. In the case of Bennington v. Taylor, 
 reported in Lutwyche,^ where the defendant in an action of trespass 
 had pleaded a right to distrain for twelve pence for stallage, due by 
 prescription, for the land near every stall in a fair, and on a motion in 
 arrest of judgment it was objected that the prescription was uncertain, 
 and therefore void, the quantity of land not being ascertained, the court 
 held it to be certain enough, because the quantity was to be ascertained 
 by the common usage of the fair. In all such cases, whether the quan- 
 tity or amount is in truth reasonable or not, it is for the jury to decide. 
 Third, that the circumstance of the plaintiff's lease in this case having 
 been by deed made no difference. There was no agreement contained 
 
 ' Vide Davis, 32 b. '0. B., E. or T., 12 Wm. III., 2 Lutw. 1517, 1519. 
 
172 IN DlFJb'KKENT KJiLATlONS AND OCCUFATIONS. 
 
 Wigglesworth v. Dallison. 
 
 in the deed that the defendant would depart from the custom, although 
 the parties must have known of it when the lease was executed. He 
 did not claim under any parol contract, express or implied ; and there- 
 fore the argument of repugnancy did not apply, and the Nisi Prius 
 case which had been cited went upon mistaken reasoning. Hill, Serjt., 
 admitted that he knew of no instance, in the reports, of a similar custom 
 to this in the ease of freehold property ; but he said there were several 
 with regard to copyholds that went much farther, and he cited EastcouH 
 v.WeeJces,^ where a custom that the executors and administrators of 
 every customary tenant for life, if he should die between Christmas and 
 Lady-day, should hold over to the Michaelmas following, is stated in 
 the pleadings, 2 and no objection taken to it on the argument of the 
 case. 
 
 For the defendant were cited Grantham v. Howley ^ and While v. 
 Sayer* in which last case a custom for a lord of a manor "to have 
 common of pasture in all the lands of his tenants for life or years," 
 which had been pleaded in justification of a trespass in the land of a 
 tenant for years, was held to be void and against law, for that such a 
 privilege is contrary to the lease, being part of the thing demised, and 
 different from a prescription to have a heriot from every lessee for life, 
 because that is only collateral ;5 a case relied on by Houghton, J., 
 in White v. Sayer,^ in which he said the court had decided that a cus- 
 tom for lessees for years to have half a year after the end of theu- 
 term to remove their utensils was void, as being against law ; Startup 
 V. Doderidge,' where the court refused to grant a prohibition on the 
 suggestion of a modus "to pay upon request, at the rate of two shi'- 
 lings for every pound of the improved yearly rent or value of the land," 
 because the yearly rent or value was variable and uncertain ; Nailor, 
 qui tarn, v. Scott,^ where, a custom having been found by a jury " that 
 every house-keeper in the parish of Wakefield having a child born there 
 should, at the time when the mother was churched, or at the usual time 
 after her delivery when ^ she should be churched, pay tenpence to the 
 vicar," the court, on a motion in arrest of judgment, determined that the 
 custom was void, being ( 1 ) uncertain, because the usual time for women 
 
 > T., 10 Wm. III., 1 Lutw. 799, 801. tain crop ol corn did of right belong to him ; 
 
 2 It iB found by the special verdict, the or, in other words, if the question of law was 
 action being ejectment. in his favor. 
 
 3 T., 13 Jao. I., Hob. 182. That case, if at * B. R., M., 19 Jac. I., Palm. 211. 
 all applicable, seems to me to make for the ^ Oites 21 Hen. VII., c. 14. 
 plaintiff. It is curious in one respect, viz. : " B. E., M., 19 Jac. 1., Palm. 211. 
 
 that the question was brought on in an action ' E., 4 Anne, 2 hi. Eaym. 115S ; 2 Salt. G37; 
 
 of debt on a common bond, conditioned for 1 Modern, 60. 
 
 the payment of £4o to the plaintiH if a cer- » E., 2 Geo. II., 2 Ld. Kaym. 1558. 
 
LANDLORD AND TENANT. 173 
 
 Illustrative Cases. 
 
 to be churched was not alleged ; i (2) unreasonable, because it obliged 
 the husband to pay if the woman was not churched at all, or if she 
 removed from the parish, or died before the time of churching ; Garle- 
 toii V. Brightwell,^ where the defendant, on a bill for tithes, set up a 
 modus that " the inhabitants of such a tenement, with the lands usually 
 enjoyed therewith, should pay such a sum for tithe corn," and it was 
 held by the Master of the RoUs to be void for uncertainty ; Harrison v. 
 Sharp,^ where a modus that " when any of the enclosed pastures in a 
 certain vill were ploughed and sown with corn or grain of any kind, or 
 laid for meadow and mown and made into hay, tithes in Idnd were paiid 
 to the rector, but when eaten and depastured, then the occupier paid to 
 the vicar one shilling in the pound of the yearly rent or value thereof, 
 and no more, upon some day after Michaelmas, yearly," was held void on 
 the authority of Startup v. Doderidge; Wilkes v. Broadbent,* where the 
 Court of Common Pleas, and afterwards, on error brought, the Court of 
 King's Bench, held a custom found by verdict " for the lord of the 
 manor, or the tenants of his eolUeries who had sunk pits, to throw the 
 earth and coals on the land near such pits, such land being customary 
 tenement and part of the manor, there to continue, and to lay and con- 
 tinue wood there for the necessary use of the pits, and to take coals so 
 laid away in carts, and to burn and make into cinders coals laid there, r.t 
 their pleasure," to be void, because, among other reasons, the word 
 "near" was too vague and uncertain; Oland v. Burdwick,^ where a 
 feme copyholder durante vidaitate having sowed the land and then mar- 
 ried, it was determined that the lord should have the corn, upon the 
 principle that when the interest in land is determined by the act of 
 the party, he shall not have the crop ; an anonymous case in Moore, ^ 
 where it was held that a custom ' ' that a lessee for years should hold 
 for half a year over his term," was bad ; Boe, Lessee of Bree, v. Lees,'' 
 where, in an ejectment to recover a farm of about sixty acres, of which 
 fiftj'-one were enclosed and nine lay in certain open fields, a special 
 case was reserved, which stated a custom " that when a tenant took a 
 farm in which there was any open field, more or less, for an uncertain 
 term, it was considered as a holding from three years to three years," 
 and though the court decided against the custom on other grounds, yet 
 by their reasoning it clearly appeared that they thought it void for 
 uncertainty, because the quantity of open ground was not ascertained, 
 and one rood might determine the tenure of one hundred acres of land 
 
 1 In that case the cuBtom, as suggested, * B. E., H., 87 Eliz., Oro. Eliz. 460; 5 Coke, 
 did not refer to the usage ol the pariah. 116. 
 
 2 Cane, T., 1728, 2 P. Wms. 462. « H., 3 Bdw. VI., J. B. Moo. 27, pi. 8. 
 
 3 T., 1724, Buub. 174. ' C. B., M., 18 Geo. III., since reported in 
 
 4 B.R., B., 18 Geo. II., 1 Stra. 1224. W. Black. 1171. 
 
174 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Wigglesworth v. Dallison. 
 
 enclosed. Besides the above authorities,' the case before Yates, J., 
 was much relied on. It was admitted that in eases where the usual 
 crop of the country is such that it cannot come to maturity in one year, 
 a right to hold over after the end of the term, in a parol demise, may 
 be raised by implication — as, where saffron is cultivated in Cambridge- 
 shire, liquorice near Pontefract, or tobacco, which formerly used to 
 be planted in Lincolnshire. But it was contended that in such cases a 
 lease by deed would preclude such implication, as the parties must be 
 supposed to have described all the circumstances relative to the intended 
 tenure in the written instrument. Such a custom as that set up in the 
 present case could not, it was said, be of sufficient antiquity with respect 
 to leases by deed, as in the time of Richard I. , and long afterwards, 
 tenants had no permanent interest in their lands ; or, if there could be 
 such a custom, the plaintiff's lease could not be within it, because the- 
 custom must have applied to the 1st of May, old style, and this lease 
 was made and commenced after the alteration was introduced by 24 
 Geo. II., c. 23.2 
 
 The court took time to consider, and this day Lord Mansfield deliv- 
 ered their opinion, as follows : — 
 
 Lord Mansfield. — We have thought of this case, and ive are all of 
 opinion that the custom is good. It is just, for he who sows ought to 
 reap ; and it is for the benefit and encouragement of agriculture. It is 
 indeed against the general rule of law concerning emblements, which are 
 not allowed to tens^nts who know when their term is to cease, because it 
 is held to be their fault or foUy to have sown when they knew their 
 interest would expire before they could reap. 3 But the custom of a 
 particular place may rectify what otherwise would be imprudence or 
 folly. The lease being by deed does not vary the ease. The custom 
 does not alter or contradict the agreement in the lease ; it only super- 
 adds a right which is consequential to the taking, as a heriot may be due 
 by custom, although not mentioned in the grant or lease.* 
 
 The nde discharged.^ 
 
 1 4 Coke, 51 b; 1 Roll. Abr. 563, pi. 9, and occupy untU the end of the current year of 
 Co. Lit. 55, were also cited for the general his tenancy. 
 
 principles concerning customs and emble- * Vide Doe v. Snowden.O. B., M., 19 Geo. 
 
 """'''^' ni., W. Black. 1225, where it is said by the 
 
 2 The new style commenced the 1st of court that If there is a taking from old 
 January, 1758. But if this argument were Lady-day (April 5), the custom of most 
 admitted in its full extent, no custom could countries would entitle the lessee to enter 
 exist where a certain day of the month upon the arable at Candlemas (February 2), 
 made part of it, as from the errors in the to prepare for the Lent corn, without any 
 former method of computation the nominal special words for that purpose— «.«., in a 
 day was continually deviating, by degrees, written agreement for seven years, for the 
 from the natural day. court were speaking of such an agreement. 
 
 « See 14 & 15 Vict., c. 26, 5 1, giving the » Judgment was accordingly entered for 
 
 tenant, in lieu of emblements, a right to the plaintiff, upon which a writ of error was. 
 
MASTER AND SERVANT. 175 
 
 Illustrative Cases. 
 
 17. MASTER AND SERVANT — USAGE AS REGULATING TERM OF 
 
 SERVICE. 
 
 HoLCROFT V. Barber.* 
 
 Before Wightman, J., in the English Court of Queen's Bench, Trinity 
 
 Term, 1843. 
 
 In an action for wrongfully disnaissing the editor of a newspaper, the declaration stated 
 that he was engaged for a year. There was no direct evidence as to the time lor which 
 he was engaged. JSeld, that he might show that it was customary for editors of news- 
 papers to be engaged for a year unless there was an express stipulation to the contrary. 
 
 Assumpsit. The declaration stated that on the first day of January, 
 1842, " in consideration that the plaintiff, at the request of the defend- 
 ants, would enter into the employ of the defendants in the capacity of 
 editor of a certain periodical, publication, or newspaper, called the 
 Monthly Times, for a certain time, to wit, for one whole year, com- 
 mencing, to wit, on the day and year aforesaid, at and for a certain 
 salary and wages, to wit, £10 per month," the defendants promised 
 the plaintiff to retain and employ him in the capacity aforesaid, at and 
 for the salary and wages aforesaid, and to continue him in such employ 
 for the said time, to wit, for one whole year, commencing, to wit, on the 
 day and year aforesaid ; and although the plaintiff, confiding, etc. , did 
 afterwards enter into the employ of the defendants, " in the capacity 
 aforesaid," yet the defendants wrongfully dismissed him within the year. 
 Plea : Non assumpserunt. 
 
 It appeared that in the month of December, 1841, the defendants 
 were about to commence the publication of a newspaper called the 
 Monthly Times, which was to be printed in London once a month, and 
 sent to India; and that the plaintiff wrote. the leading articles of the 
 paper from the month of January, 1842, to the month of June in the 
 same year, both inclusive, for which he was paid £10 for each month. 
 
 It appeared from the evidence of Mr. Kelly, the printer of the paper, 
 that Mr. Stephenson was the person who had the management of the 
 paper ; and he stated that Mr. Stephenson was the editor of it, and had 
 on one occasion rejected a part of a leading article which had been 
 
 * Beported 1 Car. & Kir. 4. 
 
 brought In the Exchequer Chamber, and the the Exchequer, by Balguy for the plaintiff 
 
 defendant assigned for error " that the cus- in error, and Chambre for the defendant, 
 
 tomcontained and set forth, etc., is a custom The objection to the reasonableness of the 
 
 Toid in law, and is contrary to and incon- custom was abandoned. In T., 21 Geo. III. 
 
 sistent with the said indenture of lease in (June 27, 1781), Lord Loughborough deliv- 
 
 the said replication mentioned." The case ered the unanimous opinion of the Court of 
 
 was argued at Sergeants' Inn before the Exchequer Chamber that the custom wa» 
 
 judges of Common Bench and the barons of good, and the judgment was affirmed. 
 
176 IN DIFFERENT KELATION8 AND OCCUPATIONS. 
 
 Holcroft V. Barber. 
 
 written by the plaintiff. With respect to the engagement of the plain- 
 tiff being for a year there was no direct evidence except the following 
 letter, written by Mr. Stephenson to the plaintiff : — 
 
 " Saturday, Dec. 11, 1841. 
 
 " Mt Dear Holcroft: Can you, without much trouble, look in on 
 Monday at 11 or 12? It is too long to write about, but refers to an- 
 other opening for your putting about £120 a year additional into your 
 pocket. Ever sincerely yours, R. Macdonald Stephenson. 
 
 "P. S. — Legitimate business, and not speculation! ! ! " 
 
 A letter (without date) of the defendant Barber to the plaintiff was 
 also put in. It contained the following passages: "We regret to say 
 that the last mail does not bring us satisfactory account of our spec, as 
 regards the Monthly Times, and we are therefore constrained to forego 
 the monthly summaries for which we have been indebted to your good 
 offices. * * * "WTe are desired to express the proprietor's full ap- 
 probation of the style and matter which your pen has furnished." 
 
 Piatt, for the plaintiff, proposed to call witnesses to show that there 
 was a custom that editors, sub-editors, and reporters of newspapers were 
 engaged for a year unless it is otherwise expressed at the time of making 
 the engagement. 
 
 Crowder, for the defendants. — I submit that the evidence is not 
 receivable. This is a matter of contract only, and not a matter of 
 custom, any more than hiring a groom. One master may hire his ser- 
 vants on certain terms, and another upon quite different terms, just as 
 they may agree with their servants. 
 
 Piatt. — In the case of a groom, the usage is a month's wages or a 
 month's warning. Evidence of usage always has been received. 
 
 WiGHTMAN, J. — You may go into evidence to show a custom. 
 
 Mr. Powell was called. He said the custom is that the engagements 
 of editors, sub-editors, and reporters upon newspapers are annual unless 
 expressly stated to be otherwise. 
 
 WiGHTMAN, J. — Does your custom apply to contributors, who are 
 neither editors, sub-editors, or reporters? 
 
 Mr. Powell. — To persons engaged to regularly supply the leading 
 articles. 
 
 WiGHTMAN, J. — Then it stands thus: that engagements of editors, 
 sub-editors, reporters of newspapers, and persons who are engaged to 
 regularly supply the leading articles of newspapers, are for a year unless 
 otherwise expressed. That would be so in the case of a clerk or ser- 
 vant. 
 
 This custom was also deposed to by Mr. James Woods and Mr. Knox, 
 
MASTER AND SERVANT. 177 
 
 Illustrative Cases. 
 
 who had both of them been many years connected with newspapers ; but 
 none of the witnesses knew of any instance of the custom being applied 
 to a newspaper which camfe out once a month. They also stated that 
 the person who wrote the leading articles they should consider as the 
 editor of a newspaper, and that the person who had the management of 
 the paper they should rather consider as a sub-editor ; but that on many 
 pubUcations — particularly on the great London newspapers — there 
 were several persons who were editors, and who took different portions 
 of the editorship, and that therefore, in such cases, no one person would 
 be considered as the editor. 
 
 Crowder, for the defendants, addressed the jury, and submitted, first, 
 that the plaintiff was not engaged by the defendants "■ ' in the capacity 
 of editor," as stated in the declaration ; and, secondly, that the custom 
 deposed to by the witnesses as to the engagements of editors, sub- 
 editors, and reporters did not apply to a paper published once a month 
 to be sent abroad, this being a new species of paper, published on spec- 
 ulation, and not a newspaper on which the engagements would be 
 permanent. 
 
 WiGHTMAN, J. (in summing up). — There are two questions in this 
 case : First, did the defendants engage the plaintiff as the editor of this 
 publication ? for if the plaintiff was not engaged as the editor, he must 
 fail in this action, as he is described in the declaration as having been 
 so engaged; and, secondly, if he was engaged as the editor, was he 
 engaged for a year by express words, or by any custom which prevails 
 in the business, though nothing was said in express words as to the 
 duration of the engagement? On the first point, Mr. Kelly, the printer, 
 says that Mr. Stephenson was the editor ; and he also states that Mr. 
 Stephenson had the management of the paper, and rejected a part of 
 one of the plaintiff's articles. There is no doubt that the plaintiff was 
 a contributor to the paper, and that he wrote the leading articles, sub- 
 ject, as appears in that instance, to the control of Mr. Stephenson. 
 There are several witnesses who state that they consider that the plain- 
 tiff was the editor, notwithstanding this, and that Mr. Stephenson was 
 rather the sub-editor ; but it is difficult to reconcile this with the state- 
 ment that Mr. Stephenson had the power of rejecting the articles written 
 by the plaintiff ; and you have the direct testimony of Mr. Kelly that Mr. 
 Stephenson was the editor, and the fact that in no part of the corre- 
 spondence is the plaintiff spoken of as the editor. If you think that 
 the plaintiff was not the editor, and did not fill the situation designated 
 in the declaration, your verdict should be for the defendants; but if 
 you think that the plaintiff did fill the situatibn mentioned in the decla- 
 
178 IN DIFFEKENT RELATIONS AND OCCUPATIONS. 
 
 Waring v. Grady. 
 
 ration, you will then consider whether there was an engagement for a. 
 year. The paper came out once a month, and the plaintiff was paid £10- 
 per article, and the letter of Mr. Stephenson speaks of its being about 
 £120 a year; but as twelve articles at £10 each would be £120 a year, 
 this does not necessarily show that the engagement was for a year. 
 This brings us to evidence of the custom, and on this part of the case it. 
 is proved by a number of gentlemen who have been employed both as 
 editors and sub-editors that the custom is, that a person who is upon 
 the regular employ of the newspaper press is employed for a year unless 
 it be otherwise expressed ; but there seems to be some doubt whether 
 that custom applies to a paper Kke the present, as this is the rather 
 anomalous case of a paper published only once a month, and to be sent 
 to India as a sort of speculation, for we find the word " spec." is used 
 in one of the letters. The witnesses, however, all agree that it is not 
 so much whether the person is called editor, sub-editor, or reporter, but 
 that if the person be permanently employed (not occasionally only) to 
 supply a particular department of a newspaper, — as, for instance, the 
 leading article, or reports of the Parliamentary debates, — and no more 
 be said, that is an engagement for a year ; and if the engagement be for 
 a year, that engagement is reciprocally binding on both parties. You will 
 first say whether the plaintiff was engaged as the editor of the paper, as 
 stated in the declaration ; and if he was, you will then say whether, by 
 the custom, a person who is so employed is engaged for a year unless it 
 be otherwise expressed. 
 
 Verdict for the defendants, the foreman of the jury adding, " We da 
 not consider that Mr. Holcroft was the editor." 
 
 Verdict for the defendants. 
 
 18. PARTNERSHIP — POWER OF PARTNER MAT BE ENLARGED BY 
 
 USAGE. 
 
 Waring v. Grady.* 
 In the Supreme Court of Alabama, June Term, 1873. 
 
 Hon. Thomas M. Peters, Chief Justice. 
 " Benjamin F. Safpold, i 
 " Robert C. Brickbll, \ '^''^S'es. 
 
 It is the cnstom on the Alabama River for the proprietors of steamboats to pnrchase salt »t 
 Mobile, to be cari-ied up the river and sold. Had, that, in the absence of a contrary 
 
 * Reported 49 Ala. 465 ; 20 Am. Rep. 286. 
 
POWERS OP PARTNERS. 179 
 
 Illustrative Cases. 
 
 stipulation in a partnersliip agreement made for the purpose of running a steamboat 
 on tliat river, tlie firm would be liable for salt purchased by a partner at Mobile for 
 transportation and sale on the boat. 
 
 Action by the Arm of Waring & Son against P. A. Grady and John 
 J. Moulton, upon an account. It was alleged in the complaint that the 
 defendants were copartners and joint owners in the steamboat Black 
 Diamond, and in the freight thereof, and that defendants were indebted 
 to plaintiffs for two hundred sacks of salt delivered to defendants as 
 freight of such boat. In support of these allegations, which were 
 denied, the plaintiffs at trial gave evidence, which was uncontradicted, 
 to show that defendants were joint owners of the boat mentioned ; that 
 it was run by defendants from Mobile upon the Alabama and Tombigbee 
 Rivers, for freight and passengers ; that the profits and losses arising in 
 such employment were divided between defendants ; that it was, and had 
 been for many years, the common practice in that trade, when the ordi- 
 nary freight was scarce, and therefore deemed advantageous to increase 
 the freights of the boat, to purchase salt at Mobile to be carried up the 
 river and sold, or exchanged for wood or expenses ; and that this usage 
 of the trade was deemed good economy, and was recognized and known 
 to all the steamboatmen, merchants, and others, and to owners engaged 
 in said trade, and was considered within the scope of said business ; 
 and that this was also often done when no regular freight was offering, 
 to raise money to pay the expenses of the up trip, to be repaid out of 
 the profits of the down trip ; and that it was, and is now, the every-day 
 practice for owners and masters in charge of steamboats to make such 
 purchase on account of the boat and owners, for the benefit of the 
 vessel and to increase or make up profits. The plaintiffs delivered salt, 
 at the request of Moulton, for such use on the boat named, which they 
 charged to the boat and its owners. The defence set up by Grady, and 
 established by evidence, was that he had no knowledge of the purchase 
 of the salt, and did not assent to it, and that the salt was sold for said 
 Moulton' s benefit. 
 
 The court charged that unless Grady was aware of the purchase, or 
 authorized or assented to it, he would not be liable for the salt, and 
 refused to charge that the custom proved affected the partnership con- 
 tract. The plaintiffs appealed. 
 
 Boyles & Overall and George N. Stewart, for the appellants; D. C. 
 Anderson, for the respondent. 
 
 Peters, C. J. — A partnership is created by an agreement of the 
 parties who constitute it, and it may be entered into with reference to a 
 custom or usage of the place where its business is to be transacted. If 
 
180 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Goodenow v. Tyler. 
 
 this custom is a legal one, and such as the law will enforce, it may 
 modify the legal effect of the partnership agreement ; and such a cus- 
 tom may be shown, in connection with the contract, to establish the 
 intention of the parties in entering into it, for such a custom becomes a 
 part of the contract itself, and explains its stipulations, i This doctrine, 
 applied to this case, very clearly shows that the charge asked by the 
 plaintiffs below ought to have been given to the jury. This charge was 
 not abstract, but was fully supported by the evidence, which was whoUy 
 uncontradicted. It was asked in writing, and it contains a fair state- 
 ment of a legal proposition applicable to the issues submitted to the 
 jury. The court erred in refusing to give it. 
 
 The charge given by the court was also incorrect, and was calculated 
 to mislead the jury. It had the effect to withdraw from their consider- 
 ation all that part of the evidence which tended to establish the custom 
 or usage which modified the legal effect of the partnership agreement 
 in reference to the purchase of the salt. Such a charge cannot be sus- 
 tained. ^ If the obligations of the partnership were modified by the 
 usage attempted to be proven, of which the jury must judge, then the 
 contract of partnership permitted the salt to be purchased. What this 
 contract permitted was within the scope of the business in which the 
 firm was engaged ; and within this scope or limit the act of one partner 
 is the act of all, and binds all.^ If a partner wishes to protect himself 
 against such a usage, the partnership agreement should be so framed as 
 to do this, or he should give notice of a dissent.* The judgment of 
 the court below is reversed, and the cause is remanded for a new trial. 
 
 Judgment reversed. 
 
 19. PEHTCIPAL AND AGENT — USAGE GOVERNS AGENT'S POWERS. 
 
 Goodenow v. Tyler.* 
 
 In the Supreme Judicial Court of Massachusetts, September Term, 1810. 
 
 Hon. Thkophilus Parsons, Chief Justice. 
 " Theodore Sedgwick, ^ 
 " Samuel Sewall, \ Justices. 
 
 " Isaac Parker, ) 
 
 T., a factor, having goods consigned to him by G., sold them on three months' credit, tailing 
 in payment the purchaser's promissory note to himself; but the purchaser, before the 
 
 * Reported 7 Mass. 36; 5 Am. Dec. 22. 
 
 1 Sampson v. Gazzam, 6 Port. 123; Mills » 3 Kent's Comm. 40, 41; 1 Pars, on Con. 
 
 V. United States Banlc, 11 Wheat. 431 ; Cutter 174, 176, and cases there cited, 
 ti. Powell, 6 Term Rep. 820. < 27 Ala. 245. 
 
 "- 29 Ala. 188; 24 Ala. 651; 23 Ala. 17; 22 
 Ala. 1)01,796. 
 
PKI^■CIPAL AND AGENT. 181 
 
 Illustrative Cases. 
 
 maturity of the note, became bankrupt. In an action by G. against T. for the value of 
 the goods sold: held, that evidence that he had acted according to the custom of the 
 place was admissible, and would discharge him from liability. 
 
 Action against the defendant to recover the value of a pipe of gin, 
 the property of the plaintiff, sold by the defendant as factor for the 
 plaintiff. It appeared that defendant had taken the promissory note of 
 the purchaser of the gin in payment therefor, and that before the 
 maturity of the note the maker became bankrupt ; that plaintiff gave no 
 orders whether to sell for cash or on credit ; and that it was the custom 
 in Boston, where the sale was effected, for factors to sell on credit at 
 the risk of their principals, unless an additional premium was allowed 
 for taking the risk upon themselves. Evidence to prove that it was cus- 
 tomary to take promissory notes where credit had been given by the 
 factor was rejected. The judge directed a verdict for the plaintiff for 
 the value of the gin, after deducting the amount of defendant's com- 
 missions, because the factor had received a negotiable note in payment. 
 A motion for a new trial was then made, oii the ground of misdirection 
 of the judge. 
 
 Bigelow, in support of the motion. 
 
 Lincoln, contra, contended that the factor, having had no instructions 
 to seU. on credit, was, immediately upon the sale, chargeable with the 
 value of the goods, as the negotiable promissory note taken was pay- 
 ment ; ' and that an action for money had and received was the proper 
 remedy.® 
 
 Parker, J. — The plaintiff would insist that a factor, under the cir- 
 cumstances of this ease, had no authority to trust the purchaser, and 
 that, having so done, he became immediately chargeable to the principal 
 for the price. But the law-merchant clearly contradicts this principle, 
 it being well settled that a factor may sell upon credit without taking 
 upon himself the debt, unless he is restricted from so doing by the 
 orders of his principal. And this principle is reasonable, and for the 
 benefit of those who send their goods to market; for otherwise they 
 would be frequently sold at a sacrifice, or remain unsold at the expense 
 of the owner. 
 
 But even if this were not settled law, it is very clear that the usage 
 of the market where the goods are sold would bind the owner, for he 
 is presumed to be conusant of that usage ; and if he is silent in his 
 directions to his factor as to the terms of the sale, he is considered as 
 intending to be governed by the usage. Then, if the factor had author- 
 
 ' 4 Bac. Abr., tit. " Merchant," B ; 2 Mod- ' Barclay v. Gooch, 2 Esp. 571- 
 
 ern, 100; Bulst. 101. 
 
182 IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Goodenow v. Tyler. 
 
 ity in this case to sell on credit at the risk of his principal, there being 
 no complaint of negligence, carelessness, or want of skill in making his 
 bargain, either of which might have made him liable to the owner 
 notwithstanding his general authority, the question arises whether the 
 mode in which the defendant gave the credit in this case has fixed the 
 debt upon him. A promissory negotiable note, payable to himself, was 
 taken ; and this is the point upon which the judge at the trial thought 
 the liability of the defendant rested. But I do not see why this should 
 change the nature of the case. 
 
 The relation between the principal and factor remains the same as if 
 the factor had taken a note not negotiable, or had charged the article 
 sold in his book and had made the purchaser debtor to himself, which he 
 certainly might have done, keeping an account at the same time between 
 himself and the principal. That the note was negotiable was favorable 
 to the principal, because it could easily be assigned by the factor to 
 him. It is considered by the law as taken in trust for the principal; 
 and if the factor should refuse to assign it on demand, doubtless he 
 would be liable in an action by the principal. 
 
 It is said that a negotiable note given for the amount of an account 
 for goods sold discharges the original contract. This is true, as settled 
 in this Commonwealth, between the vendor and vendee ; but it surely 
 does not foUow that because the factor has changed an account on his 
 book into the more simple and convenient evidence of debt, a note of 
 hand, that for this cause only he has burdened himself with a debt for 
 which he received no consideration. 
 
 I am, therefore, of opinion that there ought to be a new trial. 
 
 Sewali., J. — If I was satisfied that, upon established principles, a 
 factor who sells the goods of his principal upon credit and receives a 
 promissory note for the amount of the sales, payable to himself and 
 negotiable, became thereby immediately accountable as if he had sold 
 for money, I should think a new trial ought not to be granted. But I am 
 not satisfied that this is the law. I think the rule in this respect must 
 depend upon the particular usages of commission merchants, and that 
 the law upon this subject as to the authority of the factor and the 
 extent of his liability is referable to known and established usages, 
 where the parties rely altogether upon the general relation and implied 
 duty of a merchant and factor, no directions or agreement having been 
 expressed between them or proved in the case. 
 
 I think usage is competent evidence, in a case of this nature, to show 
 the implied intentions nnd understanding of the parties. As evidence 
 to the effect of proving a usage of selling upon credit, and of taking 
 
PRINCIPAL AND AGENT. 183 
 
 Illustrative Cases. 
 
 negotiable promissory notes payable to the commission merchant, was 
 offered in this case and rejected at the trial, I think there ought to he 
 a new tria,!, leaving it for the present undetermined how far the usage 
 will justify the conduct of the defendant in the ease at bar. It is very 
 certain that no usage can justify the defendant in any wilful negligence 
 in securing the property of his principal ; and if his conduct has been 
 such as to show that he had received and treated the note given for the 
 gin as his own demand, he may be liable, notwithstanding a usage to 
 sell upon credit and to take notes in payment should be fully proved. 
 Parsons, C. J., stated the nature of the action and the substance 
 •of the judge's report, and proceeded: Without considering how far 
 the evidence comports with the declaration, which point is not before 
 us on the report, I shall confine my opinion to the direction of the 
 
 judge. 
 
 The court wUl take notice, as a part of the law-merchant, that a f ac^ 
 tor may sell goods at a reasonable credit, at the risk of his principal, 
 when he is not restrained by his instructions nor by the usage of the 
 trade. He is not, however, authorized to give credit to any but persons 
 in good credit, and whom prudent people would trust with their own 
 goods. If, through carelessness or want of reasonable inquiry, he sell 
 on credit to a man not in good credit, and there be a loss, the factor 
 must bear it. 
 
 When a factor sells on credit, he may take from the purchaser some 
 instrument by which the purchase may appear, with the price and the 
 time of payment, and on which the purchaser may be charged in an 
 action at law. And it is very clear that he is not obliged to disclose 
 to the purchaser the name of his principal, or even to state to him that 
 he sells as factor. Upon these principles he may take a promissory note 
 payable to himself ; and when the principal lives in a foreign country, it 
 may be most convenient for him to have the security payable to himself, 
 so that he may sue it in his own name. When the security is in the 
 name of the factor, he holds it in trust for his principal. If the prin- 
 cipal demand it, offering to pay the conunission, and the factor refuse 
 to assign it, he then becomes answerable for the money. So, if the 
 money be lost by his negligence in not seasonably demanding it, the 
 factor is responsible for his negligence. 
 
 Upon these principles, it seems very clear that in this case, if the 
 defendant had taken a note to himself, not negotiable, to secure the pay- 
 ment of the money, he would have been a trustee of such note for the 
 plaintiff ; and if the money could not be recovered, without any laches 
 on the part of the defendant, he would in law be discharged. But in 
 
184 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Goodenow v. Tyler. 
 
 this case the defendant took as security a negotiable note in his own 
 name. And it is said that such note is payment by which the pur- 
 chaser is discharged from the principal, and consequently that the 
 defendant assumed the debt on himself, and is at all events answer- 
 able. It must be admitted that in this case it has been settled by a 
 series of decisions which can be traced back sixty years, that where a 
 negotiable note is given to secure the payment of money due by a 
 simple contract, the simple contract is holden to be satisfied or merged 
 in the note, lest the debtor on the simple contract should be holden to 
 pay it to the creditor, and afterwards, as promisor of the note, be 
 holden to pay its contents to an innocent indorsee. But the discharge 
 of the debt due by the simple contract is the consideration for the 
 negotiable note. When a factor shall receive a negotiable note in pay- 
 ment for goods sold on commission, as the consideration arises from the 
 sale of his principal's goods, the note may be hol/ien in trust for the 
 principal. But if it be so holden in trust, and the principal demand 
 the note, offering to pay the commission, and the factor refuse to assign 
 it without a right of recurring to himself, this is a breach of his trust 
 which will make him answerable. He is also answerable if he negotiate 
 the note for his own use, or if the money be lost by his neglect of 
 demanding it of the parties to the note. Although a negotiable note 
 may change the remedy against the purchaser on credit if he fail to 
 pay, yet the relation between the principal and factor may not be 
 affected. If the law or the usage were not so, the disadvantages to the 
 principal would be great. No factor would ever take a negotiable note 
 as security in his own name, unless for an extra compensation as guar- 
 anteeing the payment. By taking such a negotiable note the principal 
 is not obliged to wait for his money until due, but the factor may 
 immediately discount the note and receive the money. But when the 
 principal hves abroad such discount is impracticable, unless by send- 
 ing the note and having it returned indorsed by him. Another great 
 benefit of a negotiable note in the name of the factor is, that he may, 
 on the credit of it, make advances to his principal, which is often 
 desired before the money is due. And the advances are easily procured 
 by the factor's discounting the note. But if the note is in the name of 
 the principal, the factor cannot, on the credit of it, make any advances 
 to his principal. 
 
 For these reasons I am satisfied that the principle holden by our 
 courts, that a negotiable note is a bar to an action on a simple contract 
 which is the consideration of the note, does not necessarily and abso- 
 lutely affect the relation between a factor and his principal as to the 
 
PRINCIPAL AND AGENT. 185 
 
 Illustrative Cases. 
 
 authority of the former to take a negotiable note in his own name in 
 trust for the latter. 
 
 Whether, in deciding this point, we can judicially take notice of the 
 usage in Boston, to which place the plaintiff sent his goods to be sold 
 on commission, may be questioned. But a general usage in any place 
 by which sales on commission are regulated may be given in evidence ; 
 for it is a reasonable and legal presumption that every man knows the 
 usage of the place in which he traffics, whether by himself or his factor, 
 and if the usage be not illegal he is bound by it. If, then, it be the 
 weU-known and uniform usage in Boston for the factor to take nego- 
 tiable notes in his own name as a security for the payment for the goods 
 of his principal, sold on credit, but in trust for his principal, such usage 
 must bind the principal, unless he give his factor instructions repugnant 
 to it ; and such usage may be proved to a jury. Now, I am satisfied that 
 such is the usage in Boston, and, I believe, in every commercial city in 
 the United States where goods are sold by factors on commission. 
 
 In applying these observations to the case before us, there seems to be 
 no imputation in the report, whatever may appear to be the ease on 
 another trial, of laches in the defendant in selling the plaintiff's gin on 
 credit to Chapin, nor in collecting the money. Chapin failed before the 
 money was payable. But the defendant took as security from Chapin 
 his negotiable note, payable to himself or his order. It is not pretended 
 that the defendant was to guarantee Chapin' s payment, or that he had 
 any commission on that account. The only point is, whether the 
 defendant, by receiving from Chapin his note payable to himself or his 
 order, made himself liable in all events to the plaintiff for the payment 
 of the money due on the note. 
 
 My present opinion is that, on general principles of the law-merchant, 
 independent of any usage in Boston, the defendant did not make himself 
 thus liable ; but if there be any doubt as to these general principles, 
 evidence of the general and uniform usage in Boston, where the plaintiff 
 sent his goods for sale on commission, that the factor takes negotiable 
 notes for payment in his own name, but in trust for the principal, may 
 be legally given in evidence. Upon these grounds I am satisfied that 
 the verdict ought to be set aside and a new trial granted. 
 
 Sedgwick, J., delivered a dissenting opinion. 
 
 New trial ordered. 
 
18tJ IN DIFl'KRENT RELATIONS AND OCCUPATIONS. 
 
 Jones V. Bowden. 
 
 20. VENDOK AND PURCHASER — USAGE AS TO WARRANTY. 
 
 Jones v. Bowden.* 
 
 In the English Court of Common Pleas, May, 1813. 
 
 Et. Hon. Sir Jambs Mansfibld, Lord Chief Justice. 
 John Heath, Esq., 
 
 Sir SOULDBN IiAWRENCB, Kt., 
 
 Sir Alam Chambrb, Kt., 
 Sir ViCARY GiBBS, Kt., 
 
 A warranty may be implied from the custom of a particular trade. It belngnsnal, in the sale 
 by auction of drugs» to state in the catalogue if they were sea-damaged or not, and if 
 nothing is said as to their quality, they are supposed to be sound, the defendants offered 
 for sale a quantity of sea-damaged pimento, without saying anything about its condi- 
 tion, which was purchased by the plaintiff. Meld, that this was equivalent to a sale of 
 the goods as and for goods that were not sea-damaged, and that an action lay for the 
 fraud. 
 
 This was an action upon the case for a deceit in the sale of some 
 pimento. The first count of the declaration stated a warranty that the 
 pimento was sound, and in good state and condition, and free from dam- 
 age. The second count stated that the defendants, weU knowing that 
 divers, to wit, twenty, bags of the pimento had been and were sear 
 damaged, and in a bad state and condition, and that divers, to wit, 
 eighty-one, bags thereof were also damaged, and in a bad state and 
 condition, did nevertheless falsely, fraudulently, and deceitfully repre- 
 sent the same one hundred and one bags of pimento to be sound, and in 
 a good state and condition, free from damage, and thereby induced the 
 plaintiffs to buy the same, etc. , whereas, in truth, the pimento at the time 
 of the sale and representation was not sound, etc. The third count 
 alleged that the defendants were desirous of selling, and put up to sale 
 by the candle, certain other pimento, whereof divers, to wit, twenty, 
 bags had been and were sea-damaged, and in a bad state and condition, 
 and divers, to wit, eighty-one, bags, residue thereof, were also un- 
 sound and damaged, in a bad state and condition, and of little value, 
 nevertheless the defendants, well knowing the premises, did fraudulently 
 and deceitfully sell the same as and for pimento of sound quality, and 
 in a good state and condition, and not damaged, to the plaintiffs. The 
 cause was tried at Guildhall, at the Sittings after Trinity Term, 1812, 
 before Mansfield, C. J. The evidence was that the defendants, who 
 were brokers, had a sale by candle on the twenty-ninth day of March, 
 1810, and had previously circulated a catalogue of sale, in which were 
 
 * lieijortcd 4 Taun. 848. 
 
VENDOR ANJ> PUKCHASEK WARRANTY. 187 
 
 Illustrative Cases. 
 
 included " 187 bags of pimento, bonded," and at the foot of the cata- 
 logue was inserted a declaration as follows : " The goods to be seen as 
 specified in the catalogue, and remainder at No. 36 Camomile Street." 
 The defendants had, about two months before, purchased the pimento in 
 question for thei^ principal, at a sale comprehending both damaged and 
 undamaged pimento, under a catalogue which stated this to be sea- 
 damaged. The purchaser had repacked it. Pimento, although not 
 damaged, yet if it has been repacked, or is contained in bags that have 
 been discolored by sea-water, produces a less price in the market than 
 pimento of the same quality which has not been repacked nor the bags 
 discolored, either of those circumstances bringing it into discredit. 
 The defendants had drawn from the bulk, for the purposes of the pres- 
 ent sale, samples which were impartially taken, and were exhibited to 
 the bidders, whereby it appeared to be dusty and of an inferior quality ; 
 but it did not thereby appear that it had been sea-damaged, neither did 
 it nor can it ever appear by the sample whether pimento has been 
 repacked or not. The plaintiffs became the purchasers. At the time 
 of this sale good pimento was worth about lid per pound, and the 
 price given for the article in question, which was about 13d, was no 
 more than a reasonable price for it, after taking into consideration the 
 fact that it had been sea-damaged and repacked. Pimento is sometimes 
 sold with an express warranty of soundness ; but when damaged pimento 
 is offered to sale by auction it is usual in the trade to state that it is 
 damaged, and if nothing is added with respect to its quality it is sup- 
 posed to be sound. The goods in question were offered to sale by the 
 auctioneer without any addition or comment, and though the advertise- 
 ments stated that it was to be seen at the docks, they were never dis- 
 tributed until the day next before the sale, and no one, in fact, then 
 inspected the goods. For the plaintiffs, it was urged that there was a 
 defect known to the seller, but, unknown to the buyer, and one which 
 the buyer had no reasonable means of discovering, and the question 
 was whether that were a fraud ; and if it were a fraud, whether it could 
 be recovered for in the form of declaration above stated ; and the cases 
 were cited of Parkinson v. Lee ^ and Mellish v. Motteux.^ The defend- 
 ants insisted that they were not liable. The jury said that the state of 
 the goods ought to have been communicated by the defendants to the 
 plaintiffs, and found a verdict for the plaintiffs for £423, the price they 
 had given, subject to the two points reserved : whether the action could 
 be at all maintained, under the circumstances ; and if it could, whether 
 it could be maintained on the third count. 
 
 • 2 East, 3U. = Peake N. P. 115. 
 
188 IN DlFFKUKiNT KKLATIONS AND OCCUPATIONS. 
 
 Jones V. Bowden. 
 
 Lens, Serjt., in Michaelmas Term, 1812, obtained a rule nisi to set 
 aside the verdict and enter a nonsuit. 
 
 Shepherd and Vaughan, Serjts. , now showed cause. They relied on the 
 evidence as having proved a custom in the trade to declare at the time of 
 sale that the goods were damaged, when such wa^ the case, and insisted 
 that, therefore, the passing over that fact in silence was equivalent to a 
 representation, nay farther, it was even a warranty that the goods were 
 sound. Every circumstance which lowers the value of the goods in the 
 market is a defect which ought, under that custom, to be disclosed by the 
 seller. It was clear that the defect was in this ease known to the seller. 
 The buyer had not the means of discovering, by the exercise of ordinary 
 diligence, the facts that the pimento had been sea-damaged and repacked. 
 The sample would not show it. The reference to the goods bonded in 
 the docks was nugatory, for bonded goods are surrounded with such a 
 mass of other goods that it is impracticable to inspect them. .The jury, 
 in saying that the defects ought to have been communicated, had found 
 that there was fraud in fact. The plaintiffs were therefore entitled to 
 retain their verdict on the third count, which alleged it to be done 
 scienter, it not being pretended that there was any ground to arrest the 
 judgment on that count. 
 
 Lens and Best, Serjts. , contra. — The mere silence is neither a war- 
 ranty nor even a representation, for the defendants sell by a printed 
 particular referring to the place where the goods are to be inspected. 
 This brings the case within the principle of Baglehole\. Walters,^ Mellish 
 V. Motteux, and Pickering v. Dowson,^ viz. : that where the buyer has an 
 opportunity of examining, the seller is not bound to disclose the defects. 
 The catalogue, stating that the pimento was bonded, referred the bidders 
 to the docks for an inspection. If such part as was there was difficult 
 to be seen, yet the plaintiffs might have inspected such part as was in 
 Camomile Street. Mere silence, wher§ the party is not called on to 
 declare, is not a representation. Alind est iacere aliud celare.^ Tho 
 doctrine that a sound price is evidence of a wai-ranty of a horse, is 
 long since justly exploded. It was competent to the purchaser to call 
 for another criterion of the quality than the sample, or to make inquiries 
 respecting such qualities as the sample did not disclose ; but he makes 
 no inquiries. The general rule is, that where there is no express war- 
 ranty, unless the seller practices some trick, the maxim caveat emptor 
 applies. The evidence of the practice to mention the defect when drujjs 
 were damaiged, did not amount to proof of a uniform custom in this 
 trade to disclose all faults. It was in evidence that the brokers frc- 
 
 > 8 Camp. 154. ' 4 Taun. 779. a Cic. De Off., lib. 3, tit. 69, p. 383, Stcph. 
 
VENDOK AND PUKCHASER. 189 
 
 Illustrative Cases. 
 
 quently sold drugs with an express warranty, which would be superfluous 
 if there were an invariable implied warranty ; nor did the plaintiffs, at 
 the trial, rely on that special usage, otherwise the fact would have been 
 more closely examined into. There is no count on which the plaintiffs 
 can recover ; if there be any ground of action at all, the case must rest 
 on the sort of duty of which a breach is intended to be averred by the 
 third count, but that count alleges a fraud founded on facts entirely 
 different from those which exist. It does not state that which is the 
 only subject of complaint, the concealment by the sellers of the tech- 
 nical defect of repacking and stained bags. The allegation therein that 
 the defendants sold the pimento as and for pimento of a sound quality, 
 and in good state and condition, is disproved by the evidence, which was 
 that the defendants sold it by the sample, and that the sample showed it 
 to be dusty and of inferior quality. If that count could be supported by 
 such evidence, a purchaser would have, upon discovery of the slightest 
 defect in the quality of the goods, the full benefit of a warranty where a 
 warranty had never been given. 
 
 Mansfield, C. J. — If, in this case, any ground had been laid by 
 aflBdavit to show that the defendant had been at all surprised or misled 
 as to what might be proved against him on this third count, we might 
 have thought it proper to send it again to a jury ; but the case was not 
 moved on the ground of surprise, and there is no such evidence ; and the 
 jury having stated that they thought the defendants ought to have dis- 
 closed the sea-damage, though neither the defendants particularly cross- 
 examined, nor did the plaintiffs expressly examine their witnesses to 
 prove or disprove the custom, and there being this strong circumstance : 
 that the defendants bought the goods for sea-damaged, the distinction 
 between pimento that was sea-damaged and that which was not sea- 
 damaged being perfectly known, I think it would be too much to deprive 
 the plaintiffs of the benefit of this verdict. Since it is usual to mention 
 the fact if pimento is sea-damaged, when this is not mentioned as such, 
 how would any one understand the catalogue, having simply the word 
 "pimento," but not particularized as being sea-damaged? As to the 
 sample, it is in evidence that from that no judgment can be formed 
 respecting the sea-damage, the knowledge of which can only be had from 
 inspecting the bags. These defendants, then, do as is alleged in the 
 third count — sell it as pimento not sea-damaged. There are, it is 
 true, in that allegation the other general words, " of sound quality, and 
 in good state and condition," but they do not seem to me so to vary the 
 count as to prevent the plaintiffs from recovering on that count in a case 
 where the defendants, upon selling sea-damaged pimento, have not made 
 
190 IN DirFJEKENT REIiATIONB AiNJD OCCUPATIONS. 
 
 Conner v. Bobinson. 
 
 the representation which is usually made by persons selling pimento of 
 that description. 
 
 Heath, J., concurred, and mentioned a trial before himself on the 
 Home Circuit, in an action on the sale of some sheep sold as stock ; and 
 the evidence was that, by the custom of the trade, stock were understood 
 to be sheep that were sound, and he directed the jury that it amounted 
 to an implied warranty that they were sound, and that direction was 
 never questioned, when the case afterwards came before the Court of 
 King's Bench. 
 
 Chambre, J. , was of the same opinion. 
 
 GiBBS, J. — The justice of the case is with the plaintiffs, but I do 
 certainly doubt whether the evidence meets any of the counts in the 
 declaration. For, in all the counts it was stated either that the pimento 
 was represented or warranted sound, or that it was put up to sale as of 
 sound quality and in good state and condition, and not damaged. 
 However, as my brothers think differently, I distrust my own opinion, 
 and the rule must be discharged. ' 
 
 Sule discharged. 
 
 21. SAME — USAGE AS TO MEASUREMENT AND WEIGHT. 
 
 CoNNEK V. Robinson.* 
 In the Court of Appeals of South Carolina, April, 1834. 
 
 Hon. David Johnson, President. 
 " John B. O'Nball, i » 
 
 " William Harper, \ ■^'«*»«»- 
 
 A. purchased of B. a number of bales of cotton, at a certain price per ponnd. Several 
 months prior to the sale the cotton had been weighed by the wharfinger, and marked on 
 the bags and in the books at 63,043 pounds. When the cotton was delivered it was 
 reweighed by A., and found to amount to only 61,205 pounds. A. thereupon paid B. for 
 the cotton as of the latter weight, but refused to pay for more than he had actually 
 received. In a suit by B. against A. for the difference, it was proved that, according to 
 the custom of the trade, cotton was weighed by the wharfinger before it was put in store, 
 and the weight marked on the bags and entered in books kept for that purpose, and that 
 where a sale was made without any stipulation to the contrary, it was understood as 
 being made upon the basis of the weights thus ascertained. Held, that A. was bound 
 by the custom, and that B. was entitled to recover. 
 
 Assumpsit. In May, 1831, the defendant purchased of the plaintiff 
 201 bales of cotton, at a certain price per pound. In the February pre- 
 
 * Reported 2 Hill (S. 0.), 3M. 
 
VENDOR AND PUECHASEli MEASUREMENT AND WEIGHT. 191 
 
 Illustrative Cases. 
 
 ceding, the cotton had been weighed at public scales and put in store, 
 and the weights entered on the scale-house books by the wharfinger, and 
 according to these the 201 bales weighed in the aggregate 63,043 
 pounds. On the day of sale a bill of parcels was made out, and the 
 weights taken from the wharf-books and an order for delivery given. 
 When the cotton was delivered (which was on the same day), the 
 defendant having some reason to believe that there was a deficiency in 
 the weight, had it reweighed, and it was then ascertained that it weighed 
 only 61,205 pounds, making in the aggregate a loss of 1,838 pounds, 
 an average of about nine pounds to the bale. The defendant paid the 
 plaintiff for the cotton according to its weight on the reweighing, at the 
 rate agreed on, but refused to pay for any beyond that, and this action 
 was brought to recover for the difference between the wharfinger weights 
 and the weight on the reweighing. 
 
 The ground on which the plaintiff relied was that, according to the 
 custom of trade, cotton is weighed by the whai-finger before it is put 
 into store, and the weights marked on the bags and entered into books 
 kept for that purpose ; and when a sale is made, without a special con- 
 tract to the contrary, it is understood as having been made with refer- 
 ence to the weights thus ascertained, and the bill of parcels is made out 
 from these books. There was a great deal of evidence given in relation 
 to this custom, both for and against it ; the weight of the evidence, 
 however, appeared to establish it. 
 
 His Honor charged the jury that if the parties contracted with refer- 
 ence to any particular custom, they must be controlled by it. If they 
 did not understand each other, and one thought he had sold by the 
 wharfinger's weight, and the other that he had a right to reweigh the 
 cotton before it was shipped, then the contract must be governed by the 
 laws of the land or the custom of trade. The law would not imply that 
 one should pay for what he did not receive ; as, if one were to go into a 
 store and buy one hundred blankets, and take a bill of parcels, and it 
 was ascertained before the blankets were taken away that he had but 
 ninety, the mistake should be corrected or the purchaser would not be 
 compelled to pay for but ninety. So of cotton. If a purchaser of 
 cotton take a bill of parcels from the wharfinger's books, and it should 
 be ascertained that the wharfinger had made a mistake, it ought to be 
 rectified, and the purchaser compelled only to pay for the actual weight. 
 When there is a gross difference, not arising from natural causes, actual 
 weight should govern; but where the difference between the wharf- 
 inger's weight and a subsequent weighing arises from natural causes, 
 the contract must be governed by the custom of the place. Whether 
 
li)2 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Conner v. Robinson. 
 
 such custom existed it was for the jury to determine, and if it did exist 
 he would not regard it as unreasonable. 
 
 The jury found for the plaintiff on the ground, as stated in the verdict, 
 that the defendant, in making the contract, made no stipulation for 
 reweighing. 
 
 The defendant appealed, and now moves for a nonsuit or new trial, 
 on the grounds (1) that the custom was not proved ; and (2) if proved, 
 it was ura:easonable, and therefore bad. 
 
 DunJcin, for the motion. — A priori, a contract to pay a certain price 
 per pound means according to the weight at the time. But it is alleged 
 that the contract was made with reference to the scale-house books ; or, 
 in other words, it is claimed to substitute the wharfinger's weights for the 
 true weights, by which an actual loss must accrue to the defendant ; and 
 custom, it is said, is to sanction this proceeding. A custom which wiU 
 do this must be general, and have received the sanction of a court of 
 justice, and been recognized as a part of the law of the land ; a mere 
 local custom cannot vary the terms of a contract. ' A custom may be 
 admitted to explain a contract when it is equivocal, but where the terms 
 of a contract admit of no doubt, no custom can control them. The 
 contract here was to pay a certain price per pound ; there is nothing 
 doubtful in this ; a pound weight means nothing more or less than a 
 pound weight, and no custom can vary its meaning.^ A custom to 
 receive bacon a little tainted, for good bacon, is not admissible.' As to 
 the propriety of admitting custom to control the meaning of contracts.^ 
 A custom, to be good, must be reasonable ; but it is unreasonable that 
 one should be compelled to pay for what he never received, or more than 
 he contracted to pay. It is usual to take the teller's count at bank, and 
 to purchase goods by the manufacturer's mark ; but it never was heard 
 of, that if the teller made a mistake, or the manufacturer's mark 
 was not correct, the receiver of the money or the purchaser of the 
 goods would be bound. The example drawn from the sales of tobacco 
 has no application, for that is not founded on custom, but is regulated 
 by statute, providing a scale of shrinkage. ^ A custom may be so 
 uniform and general that it may be supposed parties contract in refer- 
 ence to it ; but here it seems doubtful whether such custom exists, some 
 of the factors proving it, and others denying it and not acting under it.6 
 
 King, contra. — The plaintiff does not come here to enforce a contract 
 
 1 Thomas v. Clarke, 2 Stark. N. P. 450; Bos. & Pul. 168; Prescott v. Hubbell, 1 
 Edie «, East India Co., 2 Burr. 1216. McCord, 96; Barksdale ». Brown, 1 Nott & 
 
 2 Ilomer v. Dorr, 10 Mass. 26; Yates v. M. 519. 
 
 Pym, 6 Tann. US. 6 s Brev. Dig. 89-90. 
 
 " Todd V. Eeid, 4 Barn. & Aid. 210. « Trott 'v. Wood, 1 Gall. 444; Thomas v. 
 
 * 1 Ph. on Bv. 434; Anderson v. Pitcher, 2 Clarke, 2 Stark. N. P. 450. 
 
VJiNDOK AND PUKCHASEB MKASUREMENT AND WEIGHT. 190 
 
 Illustrative Cases. 
 
 oontrary to law, but to compel the defendant to keep Ms contract ; that 
 was complete on the delivery of the order on the wharfinger, with the 
 bill of parcels made out from the scale-books. ^ And the defendant 
 purchased according to the biU of parcels received by him. According 
 to the usage of trade which is established by the finding of the jury, 
 the purchaser buys cotton with reference to the wharfinger's weights 
 unless there is an express stipulation for reweigUing. There is nothing 
 unreasonable in this. Cotton loses or gains in weight according to 
 circumstances, and the purchaser buying with reference to the scale- 
 weights agrees to take the chance of loss or gain. All the witnesses prove 
 the custom. The instances in which it has been departed from were by 
 express contract. Nor is this a local custom. Charleston is a market 
 for this and part of the neighboring States, and a custom affecting such 
 interests is si general custom, and obligatory. The factors are the best 
 judges of the interest and convenience of those concerned, and the 
 court should not disturb them in the exercise of this right. Such a 
 custom is good, and will control this contract.^ 
 
 Petligru, same side. — It was known to both parties that the cotton 
 had been weighed by a wharfinger sworn to weigh correctly and impar- 
 tially.? It never could have occurred to the seller that he was obliged 
 to incur the expense of reweighing. All the witnesses concur in the 
 existence of the custom, although it has not always been insisted on. 
 We must suppose, then, that the defendant contracted with reference to 
 it, and had the wharfinger's weights before him when he purchased, and 
 consequently purchased according to those weights. The question really 
 is, whether there was an implied warranty on the part of the seller that 
 the cotton was fuU weight. The doctrine of warranty, however, does 
 not apply to produce, when the purchaser, if he wUl, may ascertain the 
 quantity.'* 
 
 Hunt, in reply. — The contract was for so many bales of cotton, at a 
 certain price per pound, and the question is, whether defendant is bound 
 to pay for a greater number of pounds than he got. A custom that will 
 establish his liability, if it is not unreasonable, and therefore bad, should 
 be so well established and so long acquiesced in as to leave no doubt 
 that the parties understood it and contracted with reference to it. It 
 should be general ^ and of long standing, reasonable and universally 
 acquiesced in.^ The proof here is that only the factors acted on this 
 
 1 Searle v. Keeves, 2 Bsp. 598. « City Laws, 237, 248. 
 
 2 Kenner v. Bank ol Columbia, ante, p. * Carnochan v. Gould, 1 Bailey, 179. 
 116; Smith!). Wright, ICaines, 43; Blnndell ' Chastainu. Bowman, 1 Hill, 271. 
 
 «J. Catterall, B Barn. &Ald. 283; GaUowayi). » Hayward v. Middleton, 3 SXoCord, 121 • 
 
 Hughes, 1 Bailey, 653. Eushforth v. Hadfleld, 6 East, 519. 
 
 13 
 
194 IN DIFFERENT RELATIONS AiSD OCCUI^A'lIUNS. 
 
 Conner «. Robinson. 
 
 custom, and whenever it has been resisted by the purchaser it has either 
 been abandoned or the contract has been broken off.^ 
 
 Johnson, J. — The history of our jurisprudence abundantly shows 
 that the law-merchant is for the most part made up of rules originally 
 framed and acted upon by the merchants for their own convenience and 
 the benefit of trade, which, with the sanction of the courts of justice, 
 have become the settled law of the land, and as binding on the citizen 
 as any other rule of law ; and it is from this source that the rules for 
 the interpretation of mercantile contracts are principally derived. Every 
 trade, art, and profession has a language in some degree peculiar to 
 itself, and it is only by reference to the general understanding of those 
 who are accustomsd to use it that we arrive at the meaning. For 
 example, when a bill of exchange or promissory note is made payable 
 on a, certain day, one not conversant with mercantile usage would 
 neces3arily conclude that it meant what was expressed, and that the 
 acceptor of the biU or the drawer of the note was bound to pay on the 
 day specified ; and it is only by reference to the understanding and usage 
 of merchants that the days of grace are allowed in addition to all 
 others. This process of law-making is perhaps the most unexceptionable. 
 A rule prescribed by the Legislature is necessarily arbitrary, and it is 
 out of the question to expect that every possible case upon which it 
 may operate could be anticipated. It is liable, therefore, sometimes to 
 operate injuriously, and it is only tolerated because it is productive of 
 the greater good. Rules formed by usage are the work of time ; they 
 must be understood and acted upon by common consent before they 
 become binding, and the opposing interest of those upon whom they 
 operate is a sure guaranty that they will not be permitted to operate 
 unequally. 
 
 The introduction of new articles of commerce, and any new source of 
 enterprise which ts opened to the merchants essentially different from 
 those which have preceded, must give rise to customs and usages suited 
 to their peculiar character ; and as there are none more interested than 
 those immediately concerned in the particular trade to estabUsh those 
 that are reasonable in themselves and precisely suited to the occasion, 
 there is no reason why they should not be at liberty to prescribe rules 
 for its governmenv;. These, it is true, have not the force of law until 
 they have received the sanction of the courts of justice, and in that 
 way become a part of the genei-al law ; but they are received as evi- 
 dence, and serve to explain what was intended by the parties. Thus, 
 though there be no express contract between the parties, yet it may be 
 
 ' Bateson v. Green, 5 Term Rep. 412, note a. 
 
VENDOR AND PURCHASER MEASUREMENT AND WEIGHT. 195 
 
 Illustrative Cases. 
 
 reasonably supposed that they meant to contract and deal according to 
 the general usage, practice, and understanding (if there be anything 
 peculiar) in relation to the subject-matter. i 
 
 To make a custom binding, three things only are necessary : First, 
 that it should be general, so much so as to be generally known to those 
 conversant with the particular trade ; and that is not repelled by the 
 ignorance of particular individuals, for every one will be presumed tO' 
 be acquainted with the usages and practices of a trade in which he 
 engages. Nor will it be vitiated by particular instances of a depart- 
 ure from it. It is every day^'s practice to pay notes and bills on the 
 day on which they are made payable on their face, and no one ever 
 thought that they deprived the payor of the days of grace if he thought 
 proper to claim them. The second is, that it should be reasonable. On 
 this subject Cheves, J., says, in Thomas v. O'lTara,^ that " he is at a 
 loss to conceive of any usage in relation to a particular traffic which 
 may not be proved, unless it be so clearly and palpably unreasonable 
 and unjust, on the mere allegation of it, as to be void." And I take it 
 that no usage can be considered as unreasonable unless it is calculated 
 to operate unequally and fraudulently. The third is, that it must not 
 violate any general rule of law. 
 
 With these general remarks, I will now proceed briefly to notice the 
 evidence which was adduced on the trial. Without descending to par- 
 ticulars, it will be sufficient to remark, generally, that the facts established 
 by the evidence on the part of the plaintiff show that for thirty years 
 past, down to the present time, the general usage among the factors is, 
 that when cotton arrives at the wharf dry and in good order, it is imme- 
 diately weighed at the public scales, and the weight marked on each 
 bag and entered in the scale-book, and if not then sold, is put in store. 
 If not dry and in good order, it is exposed for the purpose of drying, 
 and when, in the judgment of the wharfinger, it is sufficiently dried, it is 
 then weighed and stored in like manner ; that generally there is a loss in 
 weight during the time it is in store, arising from evaporation, depending 
 in quantity upon the time it remains in store and the part of the ware- 
 house in which it is stored, that in the garret immediately under the tUes 
 losing more, and that on the ground-floor less : and some instances were 
 stated in which that stored on the ground-floor had gained instead of 
 lost ; that the usual loss of weight from this cause is four or five pounds 
 to the bag, but when it is picked out of the, field and packed early in the 
 season a loss of ten pounds per bale would not be thought extraordinary ; 
 and the witnesses for the plaintiff, including some of the most respect- 
 able and experienced factors in the city, all concur in saying that sales 
 
 1 Savill V. Blanchai-a, 4 Esp. 53; Doug. 519. » 1 Mill Const. 148. 
 
196 IN DIFFJiRENT BELATIONS AND OCCUPATIONS. 
 
 Conner v. Robinson. 
 
 are generally made with refei'ence to the weights entered on the scale- 
 book, and that the bills of parcels are made out from the entry on that 
 book. Mr. Robinson, who had been engaged in the trade for thirty 
 years ; Mr. Magrath, who had been engaged for twenty-five years ; and 
 Mr. Ker Boyce, who had been engaged in the trade for seventeen years, 
 and indeed all the witnesses for the plaintiff, concur in saying that it 
 was a rule generally acted upon, and one from which they had never 
 departed, except it was expressly stipulated for in the contract of sale. 
 
 On the part of the defendant, a number of witnesses of equal respecta- 
 bility and experience have testified against the custom ; but, upon analyz- 
 ing this evidence, I think it will be found that their evidence consists 
 rather of deductions as to the equity of the custom than the fact of its 
 non-existence. I will take, for example, the evidence of Mr. Calder, 
 who is engaged in buying cotton. He says that it is a matter of mutual 
 convenience to take cotton at the first weight, but he considers that the 
 purchaser has a right, if he has any reason to suspect that the weight 
 will not hold out, to ascertain the actual quantity by weighing at the 
 time of the delivery, or at any time before it is taken from the wharf. 
 In several instances he has required cotton to be reweighed, and the 
 factor has made no difficulty ; and, in his opinion, if the buyer requires, 
 he has the right to reweigh. Now, this appears to me to be, so far as the 
 fact is concerned, proof that the general habit is to take the cotton 
 at the original weight, but that buyers occasionally require it to be 
 reweighed, and it is submitted to by the factors. So of the evidence of 
 Mr. Adger, another witness on behalf of defendant, who has had great 
 experience both as a factor and buyer of cotton. He states that the 
 practice of weighing cotton before it was put in store first originated in 
 engagements to pay the freight on cotton by weight, and it was neces- 
 sary to weigh it when received, to ascertain the amount of freight ; that 
 although cotton now pays freight by the bale, and that necessity no 
 longer exists, yet the habit of weighing prior to storing has been con- 
 tinued for the convenience of the wharfinger. The difllculties in 
 relation to this matter have induced this witness to instruct his wharf- 
 inger not to weigh his cotton until it is sold ; and in his judgment the 
 buyer has a right to as many pounds as he pays for, and that there is 
 no custom which prevents the purchaser from ascertaining the weight. 
 Now, as I understand this witness, he too proves that the general usage 
 still is to weigh the cotton before it is stored, to which his own practice 
 is an exception, — perhaps a solitary one, — and that the purchasers are 
 generally content to buy according to these weights ; but, according to 
 his view of justice and morality, the purchaser ought to pay for no more 
 tlian he has received. 
 
VKNDOK AND PURCHASER MEASUREMENT AND WEIGHT. 197 
 
 Illustrative Cases. 
 
 I think, therefore, that the fact of the existence of the general custom 
 was one which, under the circumstances, fell most peculiarly within the 
 province of the jury, and unless their conclusion was in opposition to 
 the decided preponderance of the evidence, it ought to be decisive ; and 
 so far from this being the case, it strikes me as being in accordance 
 with it ; and I am equally well satisfied with the reasonableness of the 
 custom. Upon a superficial view of the matter, one would very readily 
 fall into the opinion entertained by the witnesses on behalf of the 
 defendant, that it was unreasonable and unjust that a purchaser con- 
 tracting to pay so much by the pound weight should be required to pay 
 for a greater number of pounds than he received ; but the legal pre- 
 sumption is that any one who embarks in a particular trade is acquainted 
 with the nature of the article in which he deals, and the general usages 
 of those who deal in it. We must, then, suppose that the defendant knew 
 at the time he made the contract that cotton, when put in store, would 
 generally lose in weight, depending for the qu-antum of the loss upon 
 the part of the house in which it was stored, the season of the year in 
 which it was picked and packed, and the time that it was in store ; and 
 that the general usage was to sell by the weight ascertained when it was 
 stored, and from these data, which he might ascertain, he would be able 
 to form a pretty correct estimate of the amount of the loss in weight. 
 This would necesarDy enter into the estimate of his offer to purchase, 
 and it is his own fault if he makes an inconsiderate offer, for he is under 
 no obligation to give what the seller may demand. This, too, is a view 
 of one side of the case only. The seller has rights as well as the buyer. 
 He also is presumed to know that cotton wiU lose in weight when in 
 store, and that the scale-house weights generally represent the quantity 
 as greater than would be found upon weighing ; and it may well be sup- 
 posed that he has on that account submitted to take less than he would 
 have done if the precise weight had been before ascertained, and it 
 would do injustice to him if he was compelled to submit to the loss 
 which would be the probable result of weighing. This mode of ascer- 
 taining the quantity of an article of commerce is not peculiar to cotton. 
 Flour, for instance, is habitually sold by the barrel; without stipulating 
 that it shall contain a given number of pounds, and yet every one under- 
 stands that it must contain one hundred and ninety-six pounds, because 
 it is the usage to put that quantity in each barrel. The quantity of 
 cloth, or other goods sold by the piece or package, is generally, nay 
 almost universally, ascertained by the quantity stamped upon them, and 
 it rarely occurs that the precise quantity is marked ; and it never yet 
 occurred to any one that if there should happen to be a fraction over, 
 ;liat the buyer should pay for it, or if a fraction under, the seller should 
 
198 IN DllTKKENT RELATIONS AND OCCUPATIONS. 
 
 Esterly v. Cole. 
 
 make it good. And so of very many other articles wMch might be 
 enumerated. 
 
 I think, too, that the proof establishes that the usage is for the con- 
 venience of the persons engaged in the trade, and operates as a benefit. 
 When the trade is brisk, it is said that the same parcel of cotton some- 
 times passes through several hands in a short space of time, each seller 
 calculating on a small profit, and sometimes submitting to loss ; and if 
 each buyer might, at his pleasure, demand that it should be reweighed, 
 it is apparent that, besides the loss of time, the expenses must so diminish 
 the profit or increase the loss as to put an end to this sort of traflSe. 
 
 The interest which this case has excited has given to it some. impor- 
 tance, and as establishing a rule for the construction of these contracts 
 it deserves the consideration which has been bestowed upon it ; but it 
 belongs to that class of cases in which the parties have the right to make 
 the laws of their own contracts, and whether the verdict of the jury or 
 our view of the facts and the law be right or not, the community can 
 suffer no injury. The buyer has the right to stipulate that the cotton 
 shall be reweighed, unless he is satisfied to take it at the wharfinger's 
 weights. 
 
 The usage, as proved, is understood to extend only to the loss of 
 weight from natural causes, and not to such as arise from mistakes and 
 frauds. These the seller would certainly be bound to make good, and it 
 does strike me that the high average loss upon this cotton raises a pretty 
 strong presumption that the loss here might, at least in part, have arisen 
 from the presence of water, which was unobserved at the time it was 
 weighed and stored, and which has subsequently evaporated ; but that, 
 too, was a question for the jury, who were no doubt more competent to 
 judge of it than the court. 
 
 The motion must therefore be dismissed. 
 
 Haepeb, J., concurred; O'Neall, J., absent. 
 
 Motion dismissed. 
 
 22. same — interest charged by custom. 
 
 Esterly v. Cole.* 
 
 In the New York Court of Appeals, July, 1850. 
 
 Hon. Greene C. Bronson, Chief Justice. 
 " Charles H. Ruggles, ■\ 
 " Addisox Gardiner, \ Judges, 
 " Freeborn G. Jewett, ) 
 
 • Hoportcd 3 N. V. 502. 
 
VENDOR AND PURCHASER INTEREST. 199 
 
 Illustrative Cases. 
 
 1. Where there is a general usage in any particular trade or bnslness to charge and allow 
 
 interest, parties having knowledge of the usage are deemed to contract witli relerence 
 
 to it. 
 3. Although the law does not in general give interest upon an open running account for 
 
 goods sold, yet an agreement to pay interest may be inferred from a uniform practice 
 
 of the creditor to charge interest, known to the customer. 
 
 This was an action of assumpsit in tlie Supreme Court, brought Iby 
 M. & P. Esterly against Cole, to recover the balance of an account of 
 goods sold, etc. The plaintiffs were merchants at Medina, Ulster 
 County, and the defendant, who resided in the vicinity, was their cus- 
 tomer from 1837 to 1840. It was the practice of the plaintiffs to 
 ■charge interest after six months on goods sold by them, and the referees 
 "before whom the cause was heard found from the evidence that this fact 
 was known to the defendant. It was also proved that it was the general 
 usage among merchants in that neighborhood to charge interest after six 
 months on their accounts. The proof of this fact was objected to, but 
 the objection was overruled. The referees reported in favor of the 
 plaintiffs for the sum of $1,144.03, including over $400 for interest. 
 The Supreme Court refused to set aside the report, and the defendant 
 appealed to this court. A statement of the facts was entered in the 
 record. 
 
 B. W. PecMam, for the appellant ; M. Schoonmaker, for the respon- 
 dent. 
 
 Bronson, C. J. — The plaintiffs are merchants, and have recovered 
 interest after six months on an open running account for goods sold 
 and delivered. The law does not give interest in such a case, and it 
 oan only be recovered where there was either a stipulated term of credit 
 which has expired, ^ or an agreement, express or implied, to pay interest. 
 
 An agreement for interest may be inferred from the course of deal- 
 ing between the parties — as, where interest has before been charged and 
 allowed under the like circumstances ; also, where the creditor has a 
 uniform practice of charging interest, which was known to the customer 
 at the time of the dealing. And where there is a general usage in any 
 particular trade or branch of business to charge and allow interest, 
 parties having knowledge of the usage are presumed to contract in 
 reference to it ; and if the usage does not conflict with the terms of the 
 ■contract, it will be deemed to enter into and constitute a part of it. 
 Knowledge of the usage may be established by presumptive as well as 
 by direct evidence. It may be presumed from the fact that both parties 
 are engaged in the particular trade or branch of business to which the 
 usage relates, and also from other facts — as, the uniformity, long con- 
 tinuance, and notoriety of the usage. 
 
 ' Van Rensselaer v. Jewett, 2 N. Y. 141. 
 
200 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Esterly v. Cole. 
 
 The facts found and stated in this case touching the question of inter- 
 est are, that it was the practice of the plaintiffs and the general custom 
 (usage) of merchants in the neighborhood to charge interest after six 
 months, and that the defendant knew of the plaintiffs' custom (practice) 
 to charge interest. This means, I presume, that he knew at the time of 
 the dealing ; and if he dealt with the plaintiffs, knowing their practice 
 to charge interest, he must be deemed to have assented to the terms, and 
 agreed to pay interest. 
 
 But it is said that there was not sufficient evidence from which to find 
 the fact of knowledge. That is a question with which we, as an appel- 
 late court, have nothing to do. The court of original jurisdiction may 
 set aside a report of referees when it is either against the weight of evi- 
 dence or without sufficient evidence to support it, but an appellate 
 court has no such power. Where the trial was before referees, error 
 can only be brought on a case containing a statement of facts — not 
 evidence — prepared and inserted in the record by the court of original 
 jurisdiction. The case is in the nature of a special verdict, which, 
 leaves nothing for a court of review but the questions of law arising out ' 
 of the facts thus stated. We cannot inquire whether the court below 
 in the one case, or the jury in the other, has drawn the proper con- 
 clusions of fact from the evidence. The first instance of a review in 
 an appellate court, where the trial was before referees, was Eefd v. 
 Rensselaer Glass Factory,^ and it will be seen that the review was not 
 had on the evidence before the referees, but on a statement of facts 
 drawn up under the direction of the court below and incorporated in 
 the judgment record. I will barely mention a few other cases touching 
 the point of practice. ^ Several things are established by those authori- 
 ties: First, that for the purpose of a review in an appellate court, a, 
 case containing a statement of facts — not the evidence before the 
 referees, but the conclusions of fact drawn from that evidence by the 
 court of original jurisdiction — must be settled by that court, so as to 
 leave nothing for the appellate court but questions of law arising out of 
 established facts. Second, this case must be inserted in the judgment 
 record, with proper entries to show that the court below was moved to 
 set aside the report of the referees, that the motion was denied, and 
 judgment rendered against the complaining party. Third, if mere evi- 
 dence is inserted in the case, the appellate court will not pass upon it. 
 Fourth, the appellate court has no authority to review in any way the 
 
 1 3 Oow. 387; 5 Cow. S87. craft, 17 Wend. 169; Tho People v. Superior 
 
 = Feeter v. Heath, 11 Wend. 177; Kanfl- Court of New York, 20 Wend. 668; McPher- 
 man v. Oopons, 16 Wend. 478 ; Melvin v. Leay- son v. Cheadel, 24 Wend. 15. 
 
VENDOR AND PURCHASER CHANGE OF POSSESSION. 201 
 
 Illustrative Cases. 
 
 settlement of the case in the court below, but must take the facts to be 
 truly stated. 
 
 An objection to the admission of evidence remains to be considered. 
 The plaintiffs, in addition to showing their own practice, proved that it 
 was the general usage of merchants in that neighborhood to charge 
 interest after six months. If this had been followed up with sufficient 
 proof that the defendant knew of the usage at the time he dealt with 
 the plaintiffs, it would have made out a case for charging him with 
 interest. As the usage might form a link in a chain of evidence going 
 to charge the defendant, it was proper to hear it ; and the decision of 
 the referees in admitting it did not become improper because the plain- 
 tiffs failed to produce the further evidence which was necessary to give 
 effect to the usage. 
 
 I understand the word " neighborhood," as used in the case, to mean 
 the same town or place where the plaintiffs carried on business, and not 
 a different town or place. 
 
 Although I should not be able to concur with the Supreme Court in 
 finding from the evidence the fact that the defendant knew of the plain- 
 tiffs' practice to charge interest, yet as that fact is stated in the case, 
 which we are bound to regard as properly settled, I see no error in 
 point of law, and am of opinion that the judgment should be affirmed. 
 
 Judgment affirmed. 
 
 23. same — custom as apfecting change of possession. 
 
 Priestley v. Pratt.* 
 
 In the English Court of Exchequer, January, 1867. 
 
 Rt. Hon. Sir Fitzkoy Kelly, Kt., Chief Baron. 
 Sir Samuel Martin, Kt., 1 
 
 " George William Wilsherb Bramwell, Kt., „ 
 
 f BCLrOTlS 
 
 " William Fry Chanjstbll, Kt., 
 
 " GlLLERY PiGOTT, Kt., J 
 
 Where a custom exists in a certain business for the buyer to leave goods bouglit by Mm in 
 tlie hands ol the seller, and it is so notorious as to be practically known to all persons 
 dealing with the seller in his business, goods so lelt in the hands of the seller for a time 
 not longer than is clearly within the custom do not, on the bankruptcy of the seller, 
 pass to his assignee under the Bankruptcy Act. / 
 
 Teovek, to recover from the defendants, the assignees in bankruptcy 
 
 • Reported L. R. 2 Exch. 101. 
 
202 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Priestley v. Pratt. 
 
 of R. Grant, lambs and pigs purchased by the plaintiff of the bankrupt 
 before his bankruptcy. 
 
 At the trial before Mellor, J., at the Lincolnshire Summer Assizes, 
 it appeared that the lambs and pigs, together with two steers, were 
 bought on the 10th of July, 1865. The plaintiff paid for the whole and 
 removed the steers, but left the lambs, which were sucking, and the pigs 
 on the bankrupt's farm until it should suit his convenience to remove 
 them. On the 15th of July, Grant was made bankrupt on his own peti- 
 tion, and the assignees took and claimed to retain possession of the lambs 
 and pigs as in his order and disposition at the time of the bankruptcy. 
 
 Evidence was offered of a custom, on the purchase of farm-stock, to 
 leave the animals bought upon the seller's premises ; but the jury inter- 
 posed and said the evidence was unnecessary, for that there was a noto- 
 rious usage and custom for the vendee of cattle to leave them in the 
 hands of the vendor, for the convenience of the vendee, for a longer or 
 shorter period, as might be arranged in each case. 
 
 Upon this, a verdict was taken for the plaintiff for £49, with leave to 
 the defendants to move to enter a verdict for them, on the ground that 
 the animals were in the order and disposition of the bankrupt at the date 
 of his bankruptcy. 
 
 A rule having been obtained accordingly, Wills (Digby Seymour, Q. C, 
 with him) showed cause. He contended that, as the jury had found as 
 a fact that a notorious custom existed for the buyer to 'leave the animals 
 bought in the hands of the seller, the case was within the decisions of 
 lie Terry, ^ Prismnll v. Lovegrove,^ and Watson v. Peache.^ 
 
 The court then called on Field, Q. C. , to support the rule. He relied 
 upon TJiacltthwaite v. Cock'^ and Knowles v. Horsfall,^ and contended 
 that a custom so alleged amounted to a general custom of England for 
 buyers to leave goods in the hands of sellers until it suited their con- 
 venience to remove them. The case of Watson v. Peache was distin- 
 guishable on the ground that the bankrupt there was in the position of 
 hirer of the barges, and a custorn was proved to hire barges, and for the 
 hirer to use them with his own name painted on them. It was not, 
 therefore, as purchaser of the goods, but as the person letting them out 
 to hire, that the defendant was there protected ; but the present case was 
 merely one of the purchase of goods, and, if decided in favor of the 
 plaintiff, would almost have the effect of nullifying the reputed ownersliip 
 clause in all such transactions. 
 
 ' 7 L. T. (N. s.) 370. MTaun. 487. 
 
 2 6 L. T. (N. s.) 329. 8 6 Barn. & Aid. 1S4. 
 
 ' 1 Bing. N. 0. 327. 
 
VENDOR AND PURCHASEE CHANGE OF POSSESSION. 203 
 
 Illustrative Cases. 
 
 Kelly, C. B. — This rule must be discharged. The question before 
 Tis — and it is a question on which we have power to draw inferences of 
 fact — is whether we are to hold, upon the evidence given at the trial, 
 that these animals were in the order and disposition of the bankrupt, 
 within the meaning of the Bankruptcy Act of 1849. That question 
 depends in all cases on whether there is shown to exist, with respect to 
 the articles in question, any custom of trade so notorious as practically 
 to be known to all who do business with those dealing in such articles, 
 and who are called upon to consider the question of giving credit ,to 
 them, by virtue of which goods, in reality the property of others, are 
 allowed to remain in tlie actual possession and physical power of dis- 
 position of the bankrupt. Looldng at the circumstances of this case, 
 it is difficult to imagine a stronger case of a notorious custom — noto- 
 rious to all who are acquainted with the practice of farming. There is 
 here no question of opposing evidence ; but the jury themselves inter- 
 pose in the course of the evidence, and say that the custom is so noto- 
 rious as to make the evidence unnecessary. On this finding it must be 
 taken that the custom was known to all who might be prejudiced by the 
 apparent ownership, and that any one who was about to give credit to 
 a, farmer would not take it for granted that all the cattle he saw upon 
 the farmer's land were his own, and give credit on that footing, but, 
 conjecturing that they might be the property of others, would exercise 
 a corresponding caution. Two cases were cited to us, of Thackthwaite 
 V. (Jock and Khowles v. Horsfall. The former of these is not an 
 authority which could weigh for a moment as an argument against our 
 present decision, for there was there no custom openly and expressly 
 found by the jury to be notorious, but, on the contrary, as was observed 
 by the chief justice, ^ there was no satisfactory evidence of a usage 
 countervailing the operation of the statute. The case of Knowles v. 
 Horsfall is stronger, and entitled to much consideration ; but the decision 
 is there put chiefly on the ground that there was no notice to the world, — 
 nothing to induce persons to suppose or conjecture that the brandy in 
 question might be the property of some other person than the bankrupt, — 
 and that, to take the case out of the operation of the statute, some evi- 
 dence must be given to satisfy the jury that the property may well be 
 supposed to belong to some third person. It is to be observed that the 
 learned judges in that case refer to the custom as known only in the 
 wine trade at Liverpool. They do not even speak of a custom, notorious 
 in the trade generally, to leave goods purchased, for a greater or less 
 time, in the hands of the vendor. We must, then, suppose that such a 
 
 J S Taun. 491. 
 
204 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Banks and Banking. 
 
 state of circumstances as we have before us was not present to their 
 minds, or that the facts did not warrant the conclusion that there existed 
 any such notorious custom as is here proved. If, -however, we were to 
 suppose such a notorious custom to have been satisfactorily proved, we 
 should have to consider whether that decision is not opposed to the 
 whole course of recent authority. "Without relying on Be Terry, ^ in the 
 Bankruptcy Court, although that case was decided by a very learned 
 person, of great experience in this branch of the law, the case of Pris- 
 mall V. Lovegrove,^ in conformity with other modern cases, establishes 
 that wherever a custom exists so notorious that it may be presumed to 
 be known to all persons engaged in the business, that the buyer should 
 leave the goods bought, in the hands of the seller for a certain time, and 
 they are not left for a longer time than is clearly within the custom, 
 they are taken out of the reputed ownership clause, and the buyer is 
 entitled to recover them from the assignees in bankruptcy of the seller. 
 The present case falls within that description, and the plaintiff is there- 
 fore entitled to recover. 
 
 PiGOTT, B. — I am of the same opinion. A notorious custom has 
 been clearly found for the buyer to leave the animals bought in the 
 possession of the seller ; and that being so, it appears to me to fall 
 exactly within the description given by Mansfield, C. J. , in ThacMh- 
 waite V. Gock,^ of the custom required to take goods out of the reputed 
 ownership clause. It is " such a custom that persons dealing with the 
 traders may see and know that the goods may possibly not be the prop- 
 erty of the possessor." As to Knowles y. Horsfall, I agree with the 
 observations of the chief baron upon it ; and I will add that, at the 
 time when that case was decided, the struggle of the courts was rather 
 to give as much as possible to the assignee than to discover the true 
 owner. 
 
 Mule discharged. 
 
 NOTES. 
 I. Banks and Banking, and Negotiable and Assignablk Paper. 
 The effect of usage upon tlie laws of banking and negotiable and assignable 
 paper is discussed lengthily by the Supreme Court of the United States in the 
 leading case of Be.nner v. Bank of Columbia.* In many subsequent and earlier 
 cases, similar and different usages have been offered in evidence to control the 
 legal rules applicable to the particular facts and to alter the relations of the 
 parties under the circumstances. 
 
 ' Siipra. » s Taun. 491. 
 
 " ^'^P™- * 9 Wheat, 582, ante, p. 116. 
 
BANKS AND BANKING. 205 
 
 Powers of Offluers. 
 
 § 65. Bank Officers — Powers of, as afl eoted by Usage. — The usage of banks 
 in respect to the powers and duties of their officers, so far as such usage is 
 known to the business public, enters Into and qualifies the contracts made by 
 such banks through their officers.' Where the usage is, that in the absence of 
 the cashier the president signs drafts and checks, the signature of the president 
 under such circumstances binds the bank.'' 
 
 § 66. Same — Power to certify Checks. — In Mussey v. Eagle Bank,' a case 
 often criticised and rarely approved, it was held that the teller of a bank had no 
 inherent and implied power, by virtue of his office, to certify checks as " good." 
 And the court went further, and ruled that even if a usage on the part of the 
 latter to certify was proved, it would not make the power inherent in the teller 
 and would not alter the case. This was equivalent to holding that usage could 
 not confer on an officer the power to bind the bank by certification — a doctrine 
 at variance with all the other adjudications on the subject. While some of 
 these expressly declare that in the office of cashier the power to certify checks 
 is Inherent, they all unite in the opinion that either cashier or teller may so act 
 where it is the established custom so to do.* In a late New York case * it is 
 said of Mussey v. Eagle Bank: "The decision was made over twenty years ago, 
 and has not been repeated by the courts of Massachusetts, although the practice 
 of using certified checks must have prevailed there as elsewhere. It has been 
 repudiated in this and other States, and should not at this day be regarded as 
 the law in Massachusetts, to override a general rule of construction based upon 
 principles of the common law, of universal application." 
 
 Of equal authority to Mussey v. Eagle Bank is an early l/ousiana case, where 
 it was held that an unauthorized indorsement by the cashier of a bank of a note 
 belonging to it could not be made effectual to protect the transferee by evidence 
 of usage.' 
 
 /§ 67. Same — Proper Officer to receive Payments or Deposits. — The cus- 
 tom of the bank may have much to do in protecting a depositor or one paying 
 money to an officer of the bank. It is a matter of common knowledge that in 
 large cities the duties of banking clerks and officers are, for the more speedy dis- 
 patch of business, circumscribed and different. There is a "receiving teller; " 
 there is a "paying teller." A demand of the former would hardly bind the 
 bank; a payment to the latter would, ordinarily, not be a payment to the bank 
 
 ' Whart. on Ag., § 676 (citing Jones v. may be implied by usage. Shimmel v. Erie 
 
 Pales, 4 Mass. 245; Widgery v. Munroe, 6 K. Co., 5 Daly, 396. 
 
 Mass. 449 ; Lincoln Bank v. Page, 9 Mass. 155 ; a 9 Mete. 306. 
 
 Blanchard v. Billiard, 11 Mass. 85; Smith v. * Girard Bank v. Bank of Penn Township, 
 
 Whiting, 12 Mass. 6 ; Whitwell v. Johnson, 39 Pa. St. 92 ; Willets u. Phoenix Bank, 2 Duer, 
 
 17 Mass. 449; City Bank v. Cutter, 3 Pick. 121; Farmers', etc.. Bank v. Butchers', etc., 
 
 414; Hartlovd Bank !). Stedman,3Con«.489; Bank, 16 N. Y. 125; Meads 1;. Merchants' 
 
 Yeatono.Bank,5Ci-anch,52; Brent j;. Bank, Bank, 25 N. Y. 143; Clarke National Bank v. 
 
 1 Pet. 89; Bank of Metropolis v. Bank, 1 Bank of Albion, 52 Barb. 592; Merchants' 
 
 How. 234; Pope v. Bank, 57 N. Y. 131 ; Stam- Bank v. State Bank, 10 Wall. 604. 
 
 ford Bank v. Ferris, 17 Conn. 272). s Cooke v. State National Bank, 52 N. Y. 
 
 = Whart. on Ag., § 675 (citing Neiffer v. 96; 50 Barb. 339. 
 
 Bank, 1 Head, 162; Palmer v. Yates, 3 Sandf. « United States Bank v. Fleckner, 8 Mart. 
 
 137). The powers of officers of corporations (La.) 309 ; 13 Am. Deo. 387. 
 
206 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Banks and Banking. 
 
 itself. But It is obvious tliat the practice of the bank Itself In former instances 
 might well be shown in order to render valid and binding upon it a payment 
 under other circumstances not valid and binding. Mr. Morse, in his excellent 
 treatise, thinks that isolated cases of a contrary practice should not affect the 
 rule ; that solitary instances of payments of funds to another ofBcer than the one 
 authorized to receive them are impotent to alter established principles. But 
 Mr. Morse favors the harsh rule which requires the deposit or payment to be 
 made to the proper officer at the customer's peril, and which several adjudicated 
 cases sustain.^ In one of these cases the court say: "This is confessedly a, 
 hard case, but such cases will continue to present themselves until men shall 
 act upon the maxim, 'Do what you ought, happen what may.'" And of the 
 remaining three, two at least have been practically overruled by East Biver 
 National Bank v. Qove,^ where a better' doctrine is announced by the New York 
 Court of Appeals: "Banks must be held responsible for the conduct of their 
 officers within the scope of their apparent authority. When one goes into a 
 bank and finds behind the counter one of its officers employed in its business, 
 and upon his demand pays a debt due the bank, in good faith, without any 
 knowledge that the officer's authority is so limited that he has no right to 
 receive it, he must be protected, and the bank must be bound by the payment." 
 In the light of this authority, it can hardly be doubted that any evidence of the 
 custom of other officers under such circumstances would be conclusive. 
 
 And the question whether a transfer of shares to a cashier vests the legal title 
 thereto in the bank,* may be made plain by proof of usage.* 
 
 §68. Banks — Negotiable Paper — Usage as to Demand and Notice. — The 
 usages of banks as to demand and notice govern" and make valid acts other- 
 wise invalid — as, a notice by mail where the party lives in the same town,' and 
 where, in the absence of such a usage, the notice would be insufficient; * or a 
 notice on a day earlier or later than the legal day; ' or a demand of payment on 
 
 1 Morse on Banks, 51. Kilgore v. Bulkley, 14 Conn. 367 ; Haywood 
 
 2 Manhattan Co. v. Lydig, 4 Johns. 377; v. Pickering, L. R. 9 Q. B. 423; Isham v. 
 Thatcher v. Bank, 5 Sandf. 121; Sterling v. Fox, 7 Ohio St. 317; Trask v. Martin, 1 E. D. 
 Marietta, etc.. Trading Co., 11 Serg. &R. 179; Smith, 505. Bat see Bank of Alexandria o- 
 Terrell B. Brfinch Bank, 12 Ala. 502. Deneale, 2 Cranoh C. Ct. 488; Jackson u. 
 
 » 67 N. Y. 597. Cnlon Bank, 6 Har. & J. 41b. 
 
 * New England Marine Ins. Co. v. Chand- ■ Chioopee Bank v. Eager, 9 Meto. 584; 
 ler, 16 Mass. 275; Fairfield v. Adams, 16 Gindrat v. Mechanics' Bank, 7 Ala. .S2S; 
 Pick. 381. Grinnan v. Walker, 9 Iowa, 426; Bell v. 
 
 6 Stamford Bank v. Ferris, 17 Conn. 259. Hagerstown Bank, 7 Gill, 227. 
 
 • Hartford Bank «. Stedraan, 3 Conn. 489; "Forbes v. Omaha National Bank, 11 
 Bowen «. Newell, 5 Sandf. 326; Lewis v. Cent. L. J. 209; Ireland u. ICip, 10 Johns. 490; 
 Planters' Bank, 3 How. (Miss.) 267; Planters' s. c. U Johns. 231; Sheldon v. Benham, 4 
 Bank v. Markham, 5 How. (Miss.) 397 ; Com- Hill, 129 ; Ransom v. Mack, 2 Hill, 587; Shel- 
 raeroial, etc., Bank?). Ilamer, 7 How. (Miss.) burne Falls National Bank «;. Townsley, 
 448; Warren Bank o. Parker, 8 Gray, 221; 103 Mass. 177; State Bank d. Bowell, 6 Mart. 
 Halls V. Howell, Harp. 427; Boston Bank v. (N. s.) 287. 
 
 Hodges, 9 Pick. 420; Godden v. Shipley, 7 B. » Blanohard v. Hilliard, 11 Mass. 83; Jones 
 
 Mon. 579; Widgery v. Munroe, 6 Mass. 449; v. Fales, 4 Mass. 24S; Pierce v. Butler, 14 
 
 Lincoln, etc., Bank v. Page, 9 Maes. 165; 6 Mass. 303; Wood B.Corl,4 Mete. 203; Taan- 
 
 Am. Deo. ,52; Bridgeport Bank v. Dyer, 19 ton Bank v. Richardson, 5 Pick. 436. 
 Conn. 138; Cohoa v. Hunt, 2 Smed. & M. 227; 
 
NEGOTIABLE PAPEK. 207 
 
 Demand and Notice. 
 
 the fourth, instead of the third day after due ; ' or on the day previous to what is 
 not a legal holiday ;'' or an incorrect description in the notice ■,' or a demand on 
 the maker without presenting the note to him ; * or at the bank where negotiated, 
 and not on the indorser personally ; » or a notice intended for a director, but left 
 at the bank upon the cashier's desk." And the usage of depositors in certain 
 banks to deposit checks on the same or the next day after the day on which they 
 were received, and of the bank immediately to return any checks from the 
 " clearing-house " which the bank has not funds to cover, is recognized.' 
 
 §69. Same — Demand always necessary. — But though a demand may be 
 made on the fourth day Instead of the third, or earlier than the third, if In 
 accordance with custom, it is nevertheless necessary. It would seem, that a 
 demand be made then; and the omission of this requisite cannot be excused by 
 usage. Thus, in a Maryland case,* a witness testified l!hat he served on the 
 drawer a written notice in the usual form, stating when the note was due and 
 must be paid, and that he left the notice with the drawer, as was the custom in 
 such cases. But the Court of Appeals held that this was not sufficient. " It is 
 supposed," said Archer, J., " that this language of the witness constitutes 
 evidence of a usage on the part of the bank to make demand of payment at a 
 time and under circumstances different from the general rules of law, and that 
 efficacy should be given to such usage, if found by the jury, so as to validate as a 
 demand that which without such a usage would be a nullity. In the view which 
 we take of the evidence, it is immaterial to examine the question as to the legal 
 effect of such usage, if established, because we consider that the witness proves 
 no usage bearing on the question of a demand. The only conclusion which can 
 be drawn from the evidence is, that it is the practice of this bank, as it is of all 
 banks, to give notice of the falling due of notes, that the parties may be 
 apprised not only of the holders of the notes, but reminded and admonished of 
 the near approach of the time for the payment of their liabilities. The witness 
 does not state the existence of any usage to treat this common notification as a 
 substitute for a legal demand on the holder. The rule established is, on the 
 contrary, perfectly consistent with the necessity of presentment for payment 
 when due, and in the accustomed legal mode. * * * The plaintiff should have 
 gone further, and proved that, by the usage of the bank, demands against the 
 drawers of notes, in order to charge the indorsers, were always made by the 
 alleged notification on the day notes first fell due, instead of being made accord- 
 ing to the rules of law, and that such notice was by usage a substitute for the 
 lawful demand. In such a state of facts, the question would have been brought 
 before the court how far, In point of law, such a notice could operate as a> 
 
 ' Bank of Columbia v. Magruder, 6 Har. & ♦ Whltwell v. Johnson, 17 Mass. 449. 
 
 J. 172 ; Bank of Columbia v. Fitzhugh, 1 Har. ^ Brent v. Bank of the Metropolis, 1 
 
 & G. 339 ; Patriotic Bank v. Farmers' Bank, Pet. 89. 
 
 3 Craiich 0. Ot. 560; Bank of Washington « Weld v. Gorham, 10 Mass. 366. And see 
 
 V. Triplett, 1 Pet. 25; Mills v. Bank of the Hotohkiss «. Artisans' Bank, 42 Barb. 517. 
 
 United States, 11 Wheat. 431 ; Eaborg v. Bank ' Marrett v. Brackett, 60 Me. 624. And see 
 
 ot Columbia, 1 Har. & G. 2;U. Overman v. Hoboken City Bank, 30 N. J. L. 
 
 " City Bank v. Cutter, 3 Pick. 414. 61. 
 
 » Smith ». Whiting, 12 Mass. 8. » Farmers' Bank o. Duvall, 7 Gill & J. 78, 
 
2()« IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Negotiable Paper. 
 
 demand." ' And where due presentment according to law has been made, a 
 mercantile usage to make it in a different way is irrelevant.* 
 
 § 70. Same — Discordant Decisions. — There are some cases which seem, at 
 first glance, to conHict with the rule that the customer is presumed to agree to 
 the usages of the banl£." Piscataqua Exchange Bank v. Carter,* decided in New 
 Hampshire in 1850, and Central Bank v. Davis,^ which arose in Massachusetts in 
 1873, were alike both in facts and result. To a suit against the indorser of a 
 note, the reply was that no notice or demand had been given as required by law. 
 It appeared, however, that it was the well-known usage of the bank to require 
 the indorser, iu such cases, to make demand and notice on the note. No i»ach 
 written waiver appeared on the note, and it was held that the usage could not 
 prevail. The court said that parol evidence of usage was not admissible for the 
 purpose of varying the written contract of indorsement, and also that the usage 
 proved, being a usage for the customer to make a certain agreement, could not 
 affect a transaction in which such an agreement had not been made. Upon the 
 second ground the decisions in these cases may be sustained, but not upon the 
 first, which is equivalent to saying that a usage cannot add to a written contract. 
 
 § 71. Usage and Days ol Grace. — All bills of exchange or negotiable notes 
 not payable instantly are entitled to days of grace.' A check, being payable on 
 demand, is, therefore, not entitled to grace.' It has sometimes been attempted 
 to alter this rule by evidence of a different custom. In Woodruff v. Merchants^ 
 Bank,^ the paper was in this form : — 
 «' $1,500. Detroit, November 15, 1838. 
 
 " Sixty days after date, pay to the order of Daniel Green, Esq., fifteen hundred 
 dollars, at the Phoenix Bank in the city of New York, value received, which place 
 to account. 
 
 " Your ob'd't serv't, L. Goddard, Detroit, Mich. 
 
 "To Wm. H. Griswold, Esq., cashier Oakland County, Michigan." 
 It was contended that according to the custom of bankers and merchants in 
 New York this was a check, and was not entitled to the days of grace allowed on 
 promissory notes and bills of exchange. But the Supreme Court said: "The 
 effect of the proof of usage as given in this case, if sanctioned, would be to 
 overturn the whole law on the subject of bills of exchange in the city of New 
 York. We need scarcely add, even if the witnesses were not mistaken, and the 
 usage prevails there as testified to, it cannot be allowed to control the settled 
 and acknowledged law of the State in respect to this description of paper." 
 In Morrison v. Bailey,^ the paper was in this form : — 
 " *300. Clkvbland, 0., June 30, 1853. 
 
 " Wicksj Otis & Brownell: Pay to L. F. Burgess on the 13th day of July, '63, 
 or order, three hundred doUai^. K. B. Bailey," 
 
 ' See also Borup ». Nininger,5 Minn. 623. Yerg. 210; Daniels v. Kyle, 1 Kelly (Ga.). 
 
 " Kleekamp v. Meyer, 5 Mo. App. 144. 304; Woodvuff v. Merchants' Bank, 26 Wend. 
 
 " See ante, Chap. I., § 23. 673. 
 
 4 20 N. H, 246. 7 Dan. Neg. Inst. 507. 
 
 » 19 Pick. 373. 8 25 Wend. 673. 
 
 • Brown V. Harraden, 4 Term Rep. 148; » 6 Ohio St. IS. 
 Cook B. Darling, 2 E. I. 386 ; Brown v. Lusk, 4 
 
BANKS AND BANKING. 209 
 
 Duties of Collectina; Agents. 
 
 The testimony of a number of bankers showed a uniform custom on tlielr part 
 in Cleveland to regard drafts in this form as checks, and not entitled to days of 
 grace. But the Supreme Court of Ohio, following Woodruff v. Merchants^ Bank, 
 held that " any supposed usage of banks in any particular place to regard drafts 
 upon them, payable at a day certain after date, as checks, and not entitled to 
 days of grace, is inadmissible to control the rules of law." ' On the other hand, 
 in Pennsylvania it is held that in order to carry out the understanding of the 
 business community, evidence of such usage should be admitted.^ 
 
 § 72. Duties of Bank as Collecting Agent. — A bank receiving a check for 
 collection has, according to the general common-law rule, until the close of 
 banking-hours on the next business-day in which to present it.' But it is clear 
 that a general usage to present it within a shorter or a longer time would qualify 
 this rule,* provided it were general and well understood.* 
 
 A custom among banks of transmitting bills and notes from each to the other 
 for collection, and when paid, of passing the proceeds to the credit of the bank so 
 transmitting them, and to the debit of the bank so receiving them, cannot affect the 
 claim of a third pei-son to the proceeds of a bill which he has committed to one 
 of them for collection.* Whether, when a note is sent to a bank for collection, the 
 duty of making a demand on the maker can be delegated by it to a notary so as to 
 reUeve the bank from all subsequent responsibility, is a question upon which 
 have arisen diverse rulings. In New York it has been held that the bank remains 
 responsible;' in Pennsylvania and Louisiana, that if the bank has exercised 
 proper care in the selection, its liability is at an end; ^ in Massachusetts, proof of 
 a usage of business on the part of the bank is considered to settle the question; ' 
 While in New York no contrary usage can affect the bank's liability in such cases.'" 
 And though a bank to whom a note is sent for collection need not, as a matter of 
 law, notify all the indorsers," yet such a duty may be cast upon it by usage and 
 custom." The rule that where commercial paper is placed in a bank for col- 
 lection the title thereto does not pass to the bank, nor does it become the 
 customer's debtor for the amount untU the collection is made, is not affected by 
 a practice of the bank allowing customers to draw against such deposits before 
 
 1 But see Bowen v. Newell, 13 N. T. 290; 13; Bellemire v. Bank of the United States,* 
 
 Lawson v. Kiehards, 6 Phila. 179; Champion Whait. 105. 
 
 V. Gordon, 70 Pa. St. 476; Minturn v. Fisher, » Warren Bank v. Suffolk Bank, 10 Cush. 
 
 1 Cal. 35. 582. 
 
 °- liid- 1" Ayrault v. Pacific Bank, 47 N. Y. 570. 
 
 » RieMord v. Ridge, 2 Camp. 537 ; Moule " Haynes v. Berks, 3 Bos. & Pu\. 599 ; Bank 
 
 ». Brown, 4 Bing. N. C. 266; Boddington v. of Mobile v. Huggins, 3 Ala. 206; Branch 
 
 Schlencker, 4 Barn. & Adol. 752 ; Alexander Bank v. Knox, 1 Ala. 148 ; Phipps v. Millbury 
 
 V. Burehfleld, 7 Man. & G. 1061 ; Hare v. Henty, Bank, 8 Mete. 79 ; Colt v. Noble, 5 Mass. 167 ; 
 
 10 C. B. (N. s.) 6.5. Eagle Bank v. Chapin, 3 Pick. 180 ; Bank of the 
 
 'Boddington v. Schlencker, 4 Barn. & United States ti.Goddard, 5 Mason, 366; State 
 
 Adol. 752 ; Morse on Banks, 393. Bank v. Bank, 41 Barb. 343 ; Mead v. Engs, 6 
 
 '' Rickford v. Ridge, 2 Camp. 537 ; Mohawk Cow. .303 ; Howard v. Ives, 1 Hill, 363 ; Bank 
 
 Bank ». Broderiok, IS Wend. 133. of the United States v. Davis, 3 Hill, 451; 
 
 » Lawrence v. Stonington Bank, 6 Conn. Spencer v. Ballon, 18 N. Y. 327 ; Farmers 
 
 '^1- Bank v. Vail, 31 N. Y. 485. 
 
 ' Allen ». Merchants' Bank, 23 Wend. 315. « Smedcs v. Bank of Utica, 20 Johns. 372; 
 
 Baldwin ii. Bank of Louisiana, 1 La. An. 3 Cow. 363. 
 
210 IN OIFFERBNT RELATIONS AND OCCUPATIONS. 
 
 Banks and Banking. 
 
 the collections have actually been made.^ A bank acting as the collecting agent 
 of another has no right to receive in payment anything but money. If, Instead 
 of money, it takes a check and surrenders the paper, it assumes the rcspousi- 
 billty of the paper becoming good, and if it turns out otherwise it is liable.' 
 But it may prove as a defence a usage to act in this manner,' though Mr. Morse 
 says: "It may be doubted vehether it would free a banker from liability if lie 
 should simply show a frequent habit of parting with paper upon receiving the 
 check of the debtor, or whether he would not have to go further, and show posi- 
 tively that it was understood in all such transactions that the banker discharged 
 his full duty to the customer by so doing." * 
 
 § 73. Payment by Bank must be in good Money — Usage. — Where a bank 
 receives a sum on a general deposit, it is bound to respond to the depositor, 
 when called on, for a like sum in good money. "This," says Mr. Morse,*- 
 "has been repeatedly held in the Western States, where bank-bills of the so- 
 called ' wild-cat ' banks were deposited and credit given for the nominal value 
 in dollars and cents. Frequently, the depreciation of these bills had begun at 
 the time of deposit; often they had sunk almost immediately afterwards, 
 through every stage of depreciation, to utter worthlessness. But the courts 
 uniformly held that the credit given for so much money could only be discharged 
 by so much money, and that bills similar to those received, or even the identical 
 ones, could not be forced upon the customer in payment."* So, where the 
 deposit was made in bills of the bank itself, and they were at the time greatly 
 depreciated, it was held that payment vBust nevertheless be made in full in good 
 money.' In Marine Bank of Chicago v. Chandler,* the defendant asked the fol- 
 lowing instruction, which was refused: "If the jury believe from the evidence 
 that it is the usage and custom of banks and bankers to mingle all the funds 
 received by them in a common mass, and that according to such usage the 
 defendant mixed the funds received on account of plaintiff with its own, and 
 that its own funds, with which plaintiff's were mingled, were composed of the 
 notes of the banks of Illinois received by it in its ordinary course of business 
 for itself and its customers, which were afterwards depreciated in value from 
 causes not within defendant's control, then the loss by such depreciatioa in 
 defendant's funds must fall on him." In affirming the ruling and verdict below, 
 Walker, J., said: "Nor can the special custom of banks in a particular locality 
 change the laws of the land regulating the value of the currency and fixing the 
 standard value of the current coins. That parties may contract to receive any 
 commodity in lieu of money, in payment of indebtedness, is undeniably true. 
 This can only be done by special agreement, and not by usage. No custom caa 
 (;ompeI a creditor, in the absence of a special agreement, to receive anything 
 but the constitutional currency of the country. The fact that the business men 
 of a particular place have been in the habit of receiving depreciated paper 
 money in payment of their demands by no means proves that all creditors in 
 
 ' Giles V. Perkins, 9 East, 12; Scott v. « Corbittr. Bank of Smyrna, ^Harr. (Del.) 
 
 Ocean Banh, 2S N. Y. 289. 235 ; Marine Bank v. llushmore, 28 111. 463; 
 
 - Commercial Bank D.Union Bank, UN. Y. Fort v. Bank of Capo Fear, 1 I'hill. L. 417; 
 
 203; Levy v. National Bank, 7 Cent. L. J. 249. Marine Bank v. Ogden, 29 111. 248; Willettsii. 
 
 ■' Kusscll V. Hankoy, G Term Rep. 12; Levy Paine, 43 111. 433. 
 V. National Bank, mpra. ; Bank of the Commonwealth v. Wistcv, i 
 
 ■1 Morse on Hanks. .|2il. > 2d. 62. Pet. 318. 8 27 111.526. 
 
BANKS AND BANKING. 211 
 
 Payment. 
 
 that locality have agreed to receive the same, much less a person residing hun- 
 dred of miles distant. To have such an effect, a, special agreement must be 
 proved.' So, in Thompson v. Siggs,'^ the plaintiff had for a series of years 
 deposited coin and paper money with the defendant, a banker. Coin at the 
 time had one value, and paper money another and less value, and the different 
 deposits were entered in his pass-book as "coin" and " paper " respectively. 
 Debts being at this time payable in "coin" only, the banker requested the 
 "plaintiff to make his full balance coin, which was done. Subsequently an act 
 was passed making certain treasury-notes lawful money for the payment of 
 debts. The plaintiff continued depositing "coin" and "treasury-notes," then 
 regarded as currency, and both were entered accordingly. He afterwards drew 
 for " coin " the balk of his coin balance deposited before the act. Coin was 
 refused, and tender made of treasury-notes. In an action brought for the 
 market value of the coin drawn for, the teller of the bank having testified that 
 after the act making treasury-notes a legal tender his employer uniformly made 
 with customers depositing with them a difference, in receiving and paying their 
 deposits, between coin and paper money, and in all cases when the deposit was 
 in coin they paid the checks of their customers in coin when they called for 
 coin, otherwise treasury or bank notes, the plaintiff offered evidence to show 
 that the usage and mode of dealing between the said parties as stated by the 
 teller was the usage of all the banks in that place. This evidence was consid- 
 ered in the Supreme Court of the United States as properly rejected. " The 
 general rule of law is," said Mr. Justice Cliffokd, "that if a merchant deposits 
 money with a bank, the title to the money passes to the bank, and the latter 
 becomes the debtor of the merchant to that amount ; and it is not perceived that 
 the evidence offered, if it had been admitted, could have had any other effect than 
 to control the general rule of law, as It is not pretended that the evidence 
 showed a special deposit or any special contract. Viewed in any light con- 
 sistent with the other evidence in the record, the testimony was either entirely 
 Immaterial or inadmissible as tending to control the well-settled rules of law." ' 
 
 §74. Same — Payment of forged Check. — In regard to the payment by a 
 hank of a forged check, the general rule is that the banker, being bound to 
 know the signature of his customer, will make such a payment at his peril.* 
 How far this rule may be affected by usage is shown by the Ohio case of Ellis v. 
 Ohio Life Insurance and Trust Company .' On the trial, evidence was introduced of 
 a custom at that place for the cashier or teller of a bank to whom a check drawn 
 
 ' See also Marine Bank ». Birney, 28 111. 17 Mass. 3S; Bank ol Commerce v. Union 
 
 90; Chicago, etc., Ins. Co. v. Carpenter, 28 Bank, 3 N. T. 230; Weisser v. Denison, 10 N. 
 
 lU- 360- Y. 68; Goddard v. Merchants' Bank, 4 N. Y. 
 
 'i 5 Wall. 663. Ul; National Park Bank v. Ninth National 
 
 ' See also Chesapeake Bank v. Swain, 29 Bank, 46 N. Y. 77; Bank ol the United States 
 
 Md. 483. „. Bank of Georgia, 10 Wheat. 333 ; Oommer- 
 
 < Price V. Neale, 3 Burr. 13S5; Jenys v. cial, etc., Bank v. First National Bank, 30 
 
 rawler,2Stra. 946; Wilkinson D.Lutwidge, 1 Md. 11; First National Bank v. Ricker, 71 
 
 Stra. 648; Barber v. Gingell.S Esp. 60; Smith 111. 439; Bernheimer v. Marshall, 2 Minn. 78; 
 
 • V. Chester, 1 Durnf. & E. 666 ; Bass v. Olive, Levy v. Bank of the United States, 4 Dall. 234. 
 
 4 Moo. & S. 13; Porster v. Clements, 2 Camp. Contra, National Bank ol America v. Bangs, 
 
 17; Smith v. Mercer, 6 Taun. 76; Young v. 106 Mass. 441. 
 
 Adams, 6 Mass. 157; Markle «. Hatfield, 2 6 4 Ohio St. 628. 
 
 Johns. 462; Glon«e<iter Bank v. Salem Bank, 
 
212 IN DlPrjKRENT KliLATIONS AND OCCUJPATIONS. 
 
 Banks and Banking. 
 
 upon another bank was presented, and payment or purchase requested by an 
 unknown bearer, to take means to assure himself that all was right, and for the 
 drawee bank, upon receiving a check through another bank, to assume, relying 
 upon the custom, that such inquires had been made. The jury having found for 
 the drawee bank, the Supreme Court affirmed the judgment. " If this custom," 
 said Eanney, J., " was established to the satisfaction of the jury, the fair pre- 
 sumption arising would be that the defendants had been negligent in failing to 
 comply with an established custom of the business, necessary not only to their 
 own security, but also to that of the bank upon which the check was drawn, and 
 that the plaintiffs, not being informed to the contrary, paid the check upon the 
 supposition that the custom had been observed. » * * The custom which 
 the plaintiffs sought to establish seems to have been one of the most reasonable 
 character. It Is a great error to suppose that the drawee of a bill or check is 
 bound to rely alone upon his knowledge of the handwriting of his customer or 
 correspondent. The testimony In the case, as well as every day's experience, 
 shows this alone to be an insufficient security, when dealing with strangers and 
 in large amounts, against the Ingenuity with which forgeries are now committed. 
 The next most effective precaution is that of requiring the holder to furnish 
 some reliable information of himself and of his right to the paper. But when 
 another bank intervenes and takes the check, this cannot be resorted to by the 
 drawee. As between the banks, therefore, the observance of the custom 
 becomes a matter of mutual protection, and saves to the drawee the benefit of 
 this precaution." But in a Connecticut case, where a bank had discounted a 
 note which had been altered by erasing a portion of the printed part, it was 
 claimed in its behalf that it was customary for banks to discount paper written 
 on printed blanks, where the printed matter or some part of it had been erased, 
 and that such an erasure of printed matter did not of itself cast suspicion on the 
 paper or put the bank itself on inquiry. But this contention did not find favor 
 with the court.' 
 
 In an action by a bank to recover the amount paid upon a raised check which 
 had been certified by it, evidence that by the custom and common understanding 
 of banks and merchants the word " certified," at the time of the certification, 
 when used in the certification of checks, Imported an obligation on the part of 
 the certifying bank to pay the amount stated in the check, notwithstanding the 
 body of it was forged, was held inadmissible .' 
 
 § 75. Note voluntarily cut in Two — Usage to pay only Half. — Where the 
 holder of a bank-bill has voluntarily cut it in two for the purpose of trans- 
 mitting it by mail, whereby one part is lost, he may recover the full amount 
 from the bank upon presenting the one half and proving the loss of the other.' 
 A custom ou the part of the bank not to pay any of Its bills voluntarily cut in 
 
 1 Mahalwe Bank D. Douglass, SI Conn. 170. Bank of Pennsylvania, 2 Wash. 0. Ct. 172; 
 
 2 Security Bank v. National Bank, (i7 X. Y. Martin v. Bank of the United States, t Wash. 
 *58. O. Ct. 253 ; State Bank v. Aersten, i III. 135 i 
 
 8 Allen V. State Bank, 1 Dev. & B. Eq. S; Hinsdale v. Bank of Orange, 6 Wend. 378; 
 
 Union Bank v. Wan-on, 4 Sneed, 167; Bank Patton v. State Bank, 2 Noft & M. 464; 
 
 of Virginia v. Ward, 6 Munt. 166; Armat v. Commercial Bank v. Benedict, 18 B. Hon. 
 
 rTnioii Bonk, 2 Crauch O. Ct. 180; Bullet v. 307. 
 
BANKS AND BANKING. 213 
 
 Payment of Bills. 
 
 two, except on the production of both parts, cannot affect this rule.' So of a 
 usage to pay but half the amount of the note on the presentation of each half. 
 In Allen v. State Bank,^ the plaintiffs alleged that they were partners, and that 
 one of them, having received a number of the defendants' bank-bills in the col- 
 lection of debts due the firm, for the purpose of securing their safe transmis- 
 sion to the other, cut each of them into two parts, and enclosed the first halves 
 on one day and the other halves on another day in letters by the public mail ; 
 that the first parcel came duly to hand, but that the second was lost ; that, as 
 soon as the loss was ascertained, they presented to the defendants the halves 
 received, offered indemnity against any loss by reason of the missing halves, and 
 demanded payment of the whole amount of the bills ; that the defendants paid 
 them one-half of the sum, but refused to pay more. The bill prayed that the 
 defendants might be required to pay the balance. The defendants replied, inter 
 alia, that it was their custom to pay the holder of a half-note, on presentation 
 at their counter, one-half of the amount of the note, which custom was known 
 to their dealers, and particularly to the plaintiffs ; that this custom was adopted 
 from regard to public convenience, and not upon a supposition of their liability, 
 for they contended that no liability could be enforced except on the presenta- 
 tion of the entire note. The court decreed for the plaintiffs. "While the two 
 parts exist," said Gaston, J., "and are retained by the lawful holder, the rights 
 and liabilities of the parties remain precisely the same as before the division. 
 K one of th,e parts be afterwards lost or destroyed, the right of the former 
 holder of the note and the obligation of the maker are the same as though the 
 whole note had been destroyed. Had the notes in this case been put into the 
 mail in their original state, and then the loss occurred, it might with equal 
 plausibility have been urged that the plaintiffs, for their own convenience, took 
 upon themselves the risk of loss, and can therefore demand payment only 
 according to the letter of the engagement. If the law warranted such a usage as 
 that alleged by the defendants, of paying upon a half-note, by whomsoever pre- 
 sented, half the amount of the note, the risk of injury to the one or other of the 
 parties would be the same in the ti-ansmission by mail of a divided as of a whole 
 note. In the former case there would be indeed a double chance of casualties, 
 but only a danger of half a loss upon each casualty. Such a usage, however, is 
 wholly unsupported by law. The holder of a half-note, as such, has no right to 
 any part of the money. Such a usage has a pernicious tendency to facilitate the 
 receipt of money by the dishonest holders of half-notes, and thereby creates or 
 multiplies temptations to dishonesty. The transmission of divided notes by 
 several mails diminishes the danger of injury as to one of the parties and does 
 not increase it as to the other, is for the benefit of commerce, affords addi- 
 tional security against dishonesty by lessening the inducement to commit it, 
 and ought in no manner to affect the rights of the lawful owners of the notes." 
 
 §76. Bank — Bona flde Holder. — Evidence of usage is competent to show 
 that a bank which in good faith receives a check from a depositor and passes it 
 to his credit, and on the same day pays and charges against such deposit checks 
 drawn by him, is a bona flde holder for value of the deposited check.' 
 
 1 Bank ol the United States «. Sill, 5 Conn. 3 Market Bank v. Hartshnrne, 3 Keyes, 
 
 lOS; 13 Am. Dec. 44. 137; National Gold & Trust Co. •,. Mo- 
 
 = 1 Dev. & B. Eq. 3. Donald, 51 Cal. 64. 
 
214 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 § 77. Past-due Negrotiable Paper — Equities. — The purchaser of negotiable 
 paper past due takes it subject to the equities of other parties; he can acquire 
 no better title than his transferor.* In Vermilye v. Adams Sxpress Company,^ 
 a usage of brokers in opposition to this rule of law was set up, but without 
 success. A number of United States treasury-notes which had been stolen from 
 thu express company were purchased by a firm of bankers after the date at 
 \vhich, on their face, they were payable or convertible into bonds. It appeared 
 that the company, after the loss, had been prompt in giving warning of the theft 
 by advertising in the newspapers and delivering notices to the principal brokers, 
 Including the defendants. The latter introduced evidence to show that notes of 
 the kind in question continued to be bought and sold by bankers and brokers 
 after they had become due ; that it was not customary for dealers in government 
 securities to keep records or lists of the numbers or descriptions of bonds 
 alleged to have been lost, stolen, or altered, or to refer to such lists before pur- 
 chasing such securities; that it would be impracticable to carry on the business 
 of dealing in government securities if it were necessary to resort to such lists 
 and make such examination previous to purchase ; and that the purchase of the 
 notes in question was made in the ordinary and usual mode in which such trans- 
 actions are conducted. It was held by the Supreme Court of the United States 
 that, as to such overdue paper, a purchaser takes subject to the rights of an 
 antecedent holder, to the same extent as in the case of other paper bought after 
 maturity, and that the notes could be recovered of the defendants. "Bankers, 
 brokers, and others," said Mr. Justice Miller, " cannot, as was attempted in 
 this case, establish by proof a usage or custom in dealing in such paper which, 
 In their own Interest, contravenes the established commercial law. If they have 
 been in the habit of disregarding that law, this does not refleve them from the 
 consequences nor establish a different law." 
 
 A note not negotiable under the general commercial law may be shown to be 
 so by the custom of a particular locality.' 
 
 II. Common Carreers. 
 
 § 78. Liabilities ot Carriers created by Custom. — A common carrier is one 
 who undertakes, for hire, to transport the goods of such as choose to employ 
 him, from place to place.* But the transportation of goods, as was said by Judge 
 Story iii an early case,^ does not imply that the owner holds himself out as a 
 carrier of articles of a different nature. Yet common carriers may undertake to 
 carry other kinds of property, and if it is their custom to do so, they will be 
 
 ' Texas!). Hardenburg, 10 Wall. 68; Marsh ». Moss, 10 Barn. & Cress. 558; Kittle ». De 
 
 V. Marshall, 53 Pa. St. 396; Kellogg v. Lamatcr, S Neb. 325; Goodsono. Johnson, 35 
 
 Schnaake, 56 Mo. 187; Davis v. Miller, U Texas, 622. 
 Giiitt. 1 ; Aioiits V. The Commonwealth, IS " 21 Wall. 139. 
 
 Giatt. 750; Fisher v. Leland, 4 Cush. 456; » llindskoff ». Barrett, 11 Iowa, 172 ; s. c. 14 
 
 Clarke v. Doderiok, 31 Md. 148; Merrick v. Iowa, 102. But see Cronch v. Credit Fon- 
 
 Itiitlcr, 2 I.ans. 103; Livormoro v. Blood, 40 cier, L. U. 8 Q. B. 374. 
 
 Mo. 48; Barker v. Valentine, 10 (iray, 341; * Parker, C. J., in Dwight v. Brewster, 1 
 
 Flint ?i. Flint, 8 Allen, 34; Thomas?'. Kinsley, Pick. 50; Lawson on Car., § I. 
 8 Ga. 421; Fields u. Stunston, 1 Cokhv. 40; 5 Citizens' Bank v. Nantucket Steamboat 
 
 Diamond v. Harris, 33 Te.vns, 634 ; Burrougli Co., 2 Story, 16. 
 
COMMON CARKIBRS. 215 
 
 Usage as to Delivery to. 
 
 bound in the one case as mucli as in the other. The usages of the carrier and 
 of the public in this particular are, then, the controlling question, and it being 
 proved that it was his common practice to receive and carry certain property for 
 hire, his calling as a common carrier of such property becomes established and 
 his liability as such attaches. Therefore he may be liable as a common carrier 
 of money, as has been held in a number of cases ; • and so, where by the usage of 
 trade the carrier of goods is to act as the agent for the sale of them at the port 
 of destination, and to return the net proceeds to the shipper, he Is a common 
 caiTler of the money on the return trip.'' The word "goods," when used in 
 defining his business, is interpreted as meaning such things as from usage and 
 custom, his mode of conveyance, his public professions, the character of his 
 particular trade, or the manner of conducting it, he is to be fairly understood as 
 holding himself out to the public as ready to carry for hire.^ And, therefore, a 
 steamboat may by custom become liable as a common carrier of cash letters.* 
 And in an action against a ferryman for injury to a box of jewelry in plaintiff's 
 phaeton, while being landed frftm the defendant's ferry-boat, the question was 
 whether it was a part of the contract that the defendant should land carriages. 
 It was shown that such was the usage at that'^ferry, and the plaintiff had a 
 verdict.* 
 
 § 79. Delivery of Goods to Carrier as controlled by TJsase. — The duties 
 and responsibility of a common carrier in respect to the goods of others do not 
 commence until their delivery to him. It is well settled that to make the carrier 
 liable they must be delivered to him, or to some agent of his authorized to 
 receive them on his behalf.^ When a delivery made to an employee of the carrier 
 who does not possess the necessary authority from his principal is suflScient, has 
 been a subject not free from difficulty, as the adjudicated cases will show.' So, 
 the place at which the delivery should be made has given rise to considerable 
 litigation. In both these cases the delivery may be shown to have been made in 
 pursuance of a usage known to the carrier and recognized by him, and will then 
 
 ' Kemp V. Conghtry, 11 Johns. 109; Oin- 6 Walker ». Jackson, 10 Mee. & W. 161. 
 
 «mnati, etc., Mail Co. v. Boal, 16 Ind. 346 ; « Chitty on Car. 27 ; Brind v. Dale, 8 Car. & 
 
 Sheldon ii. Eobinson, 7 N. H. 157; Emery P. 207; Selwayu. HoUoway, 1 Ld. Eaym. 46; 
 
 V. Hersey, 4 Greenl. 407; Harrington v. Buckman v. Levi, 3 Camp. 414; Leigh v. 
 
 McShane, 2 Watts, 443 ; Merwin v. Butler, 17 Smith, 1 Car. & P. 638 ; Grosvenor ». Railroad 
 
 Conn. 138; Hosea v. McCrory, 12 Ala. 349; Co., 39 N. Y. 34. 
 
 New Jersey Steam Nav. Co. v. Merchants' ' Ibid.; Rogers «;. Railroad Co., 2 Lans. 
 
 Bank, 6 How. 344; Dwight v. Brewster, 269; Ouimit «. Henshaw, 36 Vt. 605; Trow- 
 
 1 Pick. 60; 11 Am. Dec. 133; Hutch, on bridge v. Chapin, 23 Conn. 595; Ford v. 
 Car., § 40; Allen v. Sewall, 2 Wend. 327; Mitchell, 21 Ind. 54; Leigh v. Smith, 1 Car. & 
 Sewallu. Allen, 6 Wend. 335; Van Santvoord P. 638; Butler v. Baaing, 2 Car. & P. 613; 
 17. St. John,6HiIl, 15S;Kirtland». Montgom- Allen v. Sewall, 2 Wend. 337; Shelden v. 
 ery, 1 Swan, 452. Robinson, 7 N. H. 157 ; Satterlee v. Groat, 1 
 
 " Kemp V. Coughtry, 11 Johns. 107; Lee v. Wend. 272; Dwight v. Brewster, 1 Pick. 50; 
 
 Salter, Lalor, 163 ; Emery «. Hersey, 4 Greenl. Camden, etc., Traasp. Co. v. Belknap, 2 
 
 407;16Am. Dec. 268; Harrington J). McShane, Wend. 355; Slim «. Great Northern R. Co., 14 
 
 2 Watts, 443 ; Taylor v. Wells, 3 Watts, 65. 0. B. 647 ; Taif Vale R. Co. v. Giles, 2 El. & Bl. 
 
 3 Hutch, on Car., §77. And see Frederick 823; Hyde v. Trent Nav. Co., 5 Term llep. 
 
 V. Marquette, etc., R. Co., 37 Mich. 342. 489; Gilbart v. Dale, 5 Ad. & E. 543; Oolepep- 
 
 * Hosea v. McCrory, 12 Ala. 349 ; Garey v. per v. Good, 5 Car. & P. 380 ; BurroU v. North, 
 
 Meagher, 33 Ala. 630; Knox jj. Rives, 14 Ala. 2 Car. & Kir. 681; Wilson ». York, etc., R. Co., 
 
 249. 17 L. J. 233. 
 
216 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 bind him.i "It must be admitted," says Mr. Hutchinson,' "that the doctrine 
 of constructive delivery, without notice to the carrier, is one vyhich should be 
 applied with great caution. It is undoubtedly competent for him to bind himself 
 by such a delivery, either by his express agreement that a deposit of goods at a, 
 particular place shall be a valid delivery to him, or by so advertising it to the 
 public, or by a well-known and established custom to receive the goods in that 
 way, which would perhaps be as binding upon him, as to persons who had acted 
 upon the notice or the usage, as an express agreement ; and cases may arise in 
 which the usage and course of dealing between the parties should undoubtedly 
 have that eflect. But, certainly, to do so they should be shown to have existed, 
 and to have been uniformly acted upon by the parties, by the most satisfactory 
 proof, and for a suflScient length of time to have become an established usage, 
 tantamount to an agreement to that effect, or to a declaration to the public that 
 a delivery in accordance with the usage will be deemed an acceptance by him 
 for the purpose of the transportation; and perhaps it should be shown that a reli- 
 ance upon the previous course of dealing, or the usage, or the notice, had con- 
 trolled the action of the shipper in the particular instance. But few cases are to 
 be found in which the rule has been applied, and it is to be presumed that such 
 instances will not be of frequent occurrence." In Cobban v. Downe,^ a delivery 
 to the mate of a ship by a wharfinger was held to be a good delivery, the usage 
 of the wharf being proved to sustain it. Lord Bllenbokotjgh said : " What the 
 duty of a wharfinger is, is to be measured by the usage and practice of others in 
 similar situations, or his known and professed liability. Every man contracts 
 with the public according to the known and ascertained usage of the trade or 
 business in which he is engaged. The defendant has proved that by established 
 ^ usage the goods are delivered by the wharfinger to the mate and crew of the 
 vessel which is to carry them, from which time it has been considered that their 
 responsibility is then at an end." In Leigh v. Smith,* which was a similar action 
 against a wharfinger for goods placed in his charge, and which he contended had 
 been delivered by him to the carrier, the evidence simply showed that the goods 
 had been placed on the wharf near the ship. Best, C. J., on the authority of 
 Cobban v. Doione, admitted evidence of the usage, but the witness who was 
 called on behalf of the defendant testified that the custom was to deliver to the 
 mate. The chief justice then said that the usage could not be extended, and 
 directed a verdict for the plaintiff. In an Indiana case it was ruled that while a 
 usage would sustain a delivery to the deck-hands of a steamboat, yet the mere 
 fact that the manner of the reception of the property by the deck-hands was such 
 that the officers whose duty it was to receive goods for transportation must, if 
 they had exercised reasonable diligence, have known that the box was in the 
 boat, and have received it, was not sufficient to charge the carrier, in the absence 
 
 > Hutoh.on Car., §§84,87;For(i !>. Mitchell, *81; Buchanan j». Levi, S Camp. 414; Illinois 
 il Ind. S4; Leigh v. Smith, 1 Car. & I». 638; Central K. Co. v. Smyser, 38 111. 364; Bunell 
 Blanchard v. Isaacs, 3 Barb. 383; Merriam v. "• North, 2 Car. & Kir. 679; Freeman v. New- 
 Hartford- eto.,11. Oo.,20Conu. S54; Converse ton, 3 E. D. Smith 246; Hickox ti. Nau^aLucli 
 V, NorwibJi, etc., Transp. Co., 33 Conn. 106; R. Co., 31 Conn. 281. 
 Green v. Milwauliee, etc., R. Co., 38 Iowa, ' Hntch. on C;ir.,§93. 
 100; a. c, 40 Iowa, 410; Wright ». CaldwoH, 3 '5 Esp. 41. 
 Mich. 51; Pacliard v. Getman, 6 Cow. 759; * 1 Oar. & p. 638. 
 O'Bannon v. Southern Express Co., 61 Ala. 
 
COMMON CARRIERS. 217 
 
 Delivery of Baggage. 
 
 of a custom authorizing a delivery to the deck-hands.' But a delivery to a person 
 who has become accustomed, with the consent of the carrier, to receive, is 
 always sufficient to bind him.^ Delivery to the driver of a stage-coach, not at the 
 company's office, is not a good delivery, but it may be made so if such was the 
 usage of the company, recognized by it.^ A delivery on the private wharf of a 
 carrier, although without any notice to him or his servants, will bind him, If 
 such has been his customary mode of receiving goods.* 
 
 § 80. Delivery of Bag^ag'e by Passenger. — The course of business of a car-, 
 rier may justify a passenger in leaving his baggage at a railroad depot without 
 notice to the company. Thus, in an Iowa case,'* the plaintiff, desiring to take an 
 early morning train on defendant's road, sent her trunk the evening before by a 
 drayman to the depot. It was left by the drayman in the waiting-room, and as 
 there were no employees of the defendant about the premises, no notice thereof 
 was given to any olie. It was shown that the plaintiff ha,d quarterly, for three 
 years, been in the habit of making the journey she was then about to make, and 
 had always sent her trunk the evening before ; and also, that other travellers 
 were in the habit of doing the same thing when they went by the morning train. 
 The drayman testified that he had often left baggage at the depot under similar 
 circumstances. The trunk was destroyed by fire the same night. The Supreme 
 Court held that the jury were justified in returning a verdict for the plaintiff. 
 " It is not claimed," said Beck, 0. J., "that defendant would be liable without 
 a delivery, either actual or constructive, of the property to its agent or servant. 
 That a delivery may be made at the proper place of receiving such baggage 
 under the express assent or authority of the carrier, without notice to its 
 employees, will not, we presume, be disputed. * * * There was evidence 
 tending to show a course of business on the part of defendant — a custom to 
 receive baggage left at the station-house, as in this case, without notice to 
 defendant's servants. Upon evidence of this character it was proper that the facts 
 should have been left to the determination of the jury, whether there had been 
 a delivery of the property within the rules above announced, whether a course 
 of business — a custom — had been established to the effect that a delivery of 
 baggage at the station-house without notice was regarded by defendant as a 
 delivery to its servants, and whether plaintiff's trunk was received under this 
 custom." 
 
 §81. Usage must be strictly followed. — The usage must be strictly fol- 
 lowed; in other words, the party who sets'it up must bring himself within its 
 terms, or it will not protect him. The old case of Leigh v. Bmiih,^ just cited, is 
 an example of this rule. So, where a trunk was placed on a boat by a person 
 who did not accompany it as a passenger, it was held that the fact that, according 
 
 ' Pord». Mitchell, 21 Ind. .'54. v. Getman, 6 Cow. 757; Buohm.au y;. Levi, 3 
 
 s Burrell ». North, 2 Car. & Kir. 679. Camp. 414; O'Bannon v. Southern Express 
 
 « Blanohard v. Isaacs, 3 Barb. 388; Hutch. Co., 51 Ala. 481. 
 
 on Car., § 87. * Green v. Milwaukee, etc., R. Co., 38 Iowa, 
 
 4 Meniam v. Hartford, etc., E. Co., 20 100; s. c. 41 Iowa, 410. ' 
 
 Conn. 354; Converse v. Norwich, etc., « 1 Car. & P. 638, ante, § 79. 
 Transp. Co., 33 Conn. 166. And see Packard 
 
218 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 to the custom of the boat, the delivery of a passenger's baggage by putting it 
 on the boat was sufficient, without further notice, would not avail the plaintiff, 
 he not being a passenger. "It is well settled," said the court, "that if a 
 uniform custom Is established and recognized by the carrier, and is known to 
 the public, that property intended for carriage may be deposited in a particular 
 place without express notice to him, that a deposit of property for that purpose 
 in accordance with the custom, is constructive notice, and would render any 
 other form of delivery unnecessary. The rule is founded in reason, as the 
 usage, if habitual, is a declaration by the carrier to the public that a delivery of 
 property in accordance with the usage will be deemed an acceptance of it by 
 him for the purpose of transportation. To allow a carrier, when property is 
 thus delivered, to set up by way of defence the general rule which requires 
 express notice, would operate as a fraud upon the public and lead to manifest 
 injustice. There was proof in this case from which a jury might infer that it 
 was the usual practice for passengers on the steamboat Telegraph to deposit 
 their baggage in a particular place, and that further notice of delivery or accept- 
 ance was waived. A careful examination of the record, however, shows that 
 the facts thus proved were inapplicable to the issue made up between the par- 
 ties. The declaration seeks to charge the defendants for the loss of the trunk 
 and its contents, received by them for the purpose of being transported to St. 
 Clair. There is no averment that the trunk thus delivered contained the 
 ordinary wearing-apparel of a person who had taken passage on the boat, or 
 that it was received as such. The fact that the plaintiff was a passenger and 
 took passage in the boat was essential to a recovery, and on that the proof, with 
 all the evidence received and acted upon, was indirect. There is no pretence 
 that any custom prevailed in respect to the receipt of property as freight. 
 Notice of delivery and acceptance for such purpose is controlled by the general 
 law. The proof is conclusive that the mode of delivery, as sanctioned by the 
 usage, was applicable exclusively to the ordinary baggage of a passenger, and 
 had no application to property received and agreed to be transported as freight. 
 The custom Is believed to be universal to allow passengers, in any of the usual 
 modes of conveyance, to carry, free of charge, such wearing-apparel as may be 
 necessary or convenient, and the price paid by the passenger constitutes the 
 consideration for the safe-keeping and transportation of his ordinary baggage. 
 If a trunk, therefore, is deposited with a carrier without being accompanied by 
 a passenger, it is received as freight, and is liable to the payment of ordinary 
 charges; and notice of its delivery to the carrier, and of acceptance, must be 
 given according to the rules of law before any liability can attach in case of 
 loss." 1 So, where the custom makes the placing of goods on the dock near 
 the boat and notice to the carrier a sufficient delivery to him, if more articles 
 are placed on the wharf than the carrier is notified of, he will not bo answerable 
 for the excess.^ 
 
 § 82. Complete Delivery not altered by Usage.— But, though usage may 
 render that an effectual delivery which without it the law would not regard as 
 sufficient, the converse of this rule is not true; for where thure has been an 
 actual delivery, a usage on the part of the carrier that he shall not be responsible 
 
 ■ Wright „. Caklweli, ;J Mich 51. , Packard v. Getma,.. G Govt. 757. 
 
COMMON CAKKIEK8. 219 
 
 Usage as to Delivery. 
 
 until something additional has been done, is not effectual to alter his liability. 
 His responsibility becomes fixed by accepting the property to be transported, 
 and the acceptance is complete whenever the property comes into his possession 
 with his assent. A shipper notified a railroad company that he had a quantity 
 of cotton to send by their road, and the company ran a car on a side-track up to 
 his warehouse, which was loaded with the cotton and notice sent to tlie com- 
 pany's agent; but before anything more was done, the cotton accidentally took 
 fire and was injured. Evidence was offered of a custom of the company, upon 
 receiving such notice, to have the bales counted and give a bill of lading, 
 excepting losses by fire, and then send an engine to remove the cars. But the 
 trial court refused to admit the evidence, which ruling was affirmed on appeal. 
 Tliis decision has been criticised by Judge Ebdfield '' as not meeting the 
 "highest sense of justice." In this conclusion we cannot concur. The judg- 
 ment of the court is clearly founded on principles of law and established rales. 
 " The side-track and the cars," said the court, "belong to the company, and are 
 under their exclusive control. And there is no question that the company 
 placed this car at a point opposite the wharf-boat on which the cotton was 
 stored, for the express purpose of having it transferred from the boat to the car, 
 that they might transport it to the point desired by the shipper. The company 
 had unquestionably the exclusive use and control of their road, side-tracks, and 
 freight-cars ; no use could be made of them without the consent of the company. 
 So long as a car remained on their road or side-track it was under their control, 
 and necessarily in their possession. They had the right to permit their cars 
 to stand at the point at which this one was placed. The company, at any 
 moment, at least after the car was loaded, had the unquestioned right to remove 
 it to any other part of their road; but the commission merchant had no such 
 right, even it he had possessed the means. He simply had the right to load the 
 cotton on the car. The wharf-boat, on the contrary, was in the possession of 
 the commission men, and the, cotton so continued until it was placed in the 
 car. It tlien passed into the possession of the company as effectually as if it 
 had been delivered in their warehouse. They substituted their car for their 
 w.irehouse, no doubt for the mutual convenience of all parties ; and this, too, 
 ■v\ ith the assent of the company, to promote their interest in the prosecution of 
 the business for which it was created. If this was a box-car, the company had 
 tlie right, as soon as the cotton was placed in it, to have it closed and locked; 
 or, if an open car, they had an equal right to have secured the cotton, and any 
 person interfering with it would have been a trespasser, and the company could 
 h:ive recovered damages for any injury thus perpetrated. No difference is per- 
 ceived in receiving freight on the platform of their depot and with their cars at 
 any placs on their road or side-track, or whether it is placed there by their own 
 employees or by other persons, so it is done with the assent of the company. 
 It is not the mere signing a bill of lading which transfers the possession of 
 freight to the company, but it is the evidence that they have received possession. 
 Tlieir possession may be shown by auy other legitimate evidence. The liability 
 of tlie common carrier is fixed by accepting the property to be transported. 
 If, however, goods are placed on his cart, boat, or car without his knowledge or 
 acceptance, he Is not liable. If the owner or person having the custody of the 
 
 1 Illinois, etc., R. Co. v. Smyser, 38 111 354. "- Reif. on Car., § 101. 
 
220 IM DIFFERENT RELATIONS AND OCCUrATIONS. 
 
 Common Carriers. 
 
 goods to be shipped never parts with their possession, or does not place them 
 under the control of the carrier, there is no bailment, and consequently no 
 liability incurred. But in this case the company, by their acts, accepted the 
 trust. The cotton was not placed in the car without their knowledge, but it 
 was with their express assent. Had the employees of the plaintiff's agent 
 placed the cotton on the platform of the depot, with the assent of the company, 
 to be transported, no one would doubt their liability; and yet in principle no 
 difference is perceived. According to the current of modern decisions, it is com- 
 petent for a common carrier by rail to limit his common-law liability by express 
 contract. It was held in the case of Illinois Central Bailroad Company v. Mor- 
 rison,'^ after a careful review of the adjudged cases, that railroad companies 
 could restrict their liability by express agreement, they still being held respon- 
 sible for gross negligence or wilful misfeasance. But in that case the rule was 
 restricted to a special contract ; nor are we aware that any well-considered case 
 has carried it farther, and we have no disposition to do so unless compelled by 
 authority. But this rule of law can have no application to this case, because 
 there is no pretence that there was any special agreement restricting the liability 
 of this company. Their liability cannot be limited by showing that it was the 
 usage of the road to embrace in all bills of lading for the shipment of cotton 
 that the company should not be liable for losses by fire. There was an offer to 
 prove that such had been the usage of the company, and that it was known 
 to shippers. If this had appeared it would not have availed, as nothing but 
 a special agreement could have that effect." A Connecticut case somewhat 
 resembles the foregoing. There the plaintiff, who intended to leave upon an 
 afternoon train, took his trunk to the depot in the morning, but was told by the 
 agent of the company that they did not check baggage until fifteen minutes before 
 the train left. He thereupon placed the trunk with the agent, and at the time 
 Indicated called for and obtained a check, but on his arrival at his destination 
 It was found that some money and clothing had been abstracted from it. In a 
 suit for its value, the defendants claimed that the company were only liable from 
 the time when, according to their custom, they received the trunk for trans- 
 portation, — viz., the time when it was checked, — and that if the articles were 
 stolen after it was left at the depot and before it was checked, there could be 
 no recovery. But the court refused to accede to this view. "The custom of 
 checking," they said, "can have no effect upon the character of the delivery. 
 That custom did not necessarily qualify the delivery and acceptance. The 
 check Is in the nature of a receipt, and may be given and received a,t any time 
 when the convenience and custom of the company dictate. It is not the con- 
 tract, but evidence of the ownership, delivery, and identity of the bagga::;e. 
 It is the delivery and acceptance, the abandonment of all care of the bag^^a^e 
 by the passenger and the assumption of it by the agents of the carriers, 
 expressly or impliedly, for the purpose of transportation, which fix the liability 
 of the latter as such, and that liability begins when the baggage is delivered to 
 the agent of the company for carriage." ^ 
 
 ' 19 111. 136. Camden, etc., Transp. Co. ». Belknap, 31 
 
 2 Hickox V. NangatuoU K. Co., 31 Conn. Wend. S54. 
 '2.SI ; [i'recman v. Newton, 3 E. D. Smith, 246; 
 
COMMON CAKEIERS. 221 
 
 Usage as to Stowage. 
 
 § 83. Liability tor Property while in Transit. — Although, when the property 
 is delivered Into the carrier's possession, the owner and Ms servants may accom- 
 pany it and keep an eye on it,' yet the carrier must be given the full control of 
 the property ; and if it appears that there is no intention to trust him with its 
 carriage, he will not be held liable.' A custom that the shipper shall have full 
 control of the goods would, therefore, excuse the carrier for their loss in every 
 instance in which it was followed. The defendant was a lighterman on the 
 Thames, and was sued on his undertaking to cari-y for hire. The evidence 
 showed that it was " the usage of the company, on the unshipping of the goods, to 
 clap an officer — who is called a guardian — in the lighter, who, as soon as the 
 lading is taken in, puts the company's locks on the hatches, and goes with the 
 goods to see them safe delivered at the warehouse. It appeared to be done in, 
 this case, and part of the goods were lost." Raymond, C. J., was of opinion 
 that "this differed from the common case, this not being any trust in the 
 defendant, and the goods were not to be considered as ever having been in his 
 possession, but in the possession of the company's servant, who had hired the 
 lighter to use himself," and nonsuited the plaintiff.' But in Schieffelin v. 
 Harvey,^ decided -in New York, testimony was offered to show that as soon as a 
 custom-house officer was put on board a vessel the goods were at the risk of the 
 shipper, according to the general understanding of merchants. But Thompson, 
 J., said: "The testimony is inadmissible. The established principles of law 
 cannot be controlled by custom." 
 
 § 84. Stowage ol Goods as affected by Custom. — In the carriage of goods 
 by water, where there is no bill of lading, or where the bill of lading is silent 
 upon the subject of storage, it is the duty of the carrier to stow them under 
 deck.* But usage has changed this, not only in the carriage of dangerous oils 
 and liquids,' and in the transportation of animals,' — because the former, if car- 
 ried on deck, in case of accident may be more easily cast overboard, and the 
 latter are more healthy, and can be cared for better than if in the hold, — but in 
 other cases.' In Q-ould v. Oliver,^ a usage to load timber on the decks of salling- 
 
 ' Bvans».Fitohburg,etc.,E.Co.,UlMas8. per Co. v. Merchants' Ins. Co., 22 Pick. 108; 
 
 142; Sneesby «. Lancashire, etc., R. Co., L. Sproat i>. Donnell, 26 Me. 185; Lamb «. 
 
 R. 9 Q. B. 263 ; Robinson v. Dunmore, 2 Bos. Parkman, 1 Spiague, 343. This rule, it seems 
 
 & Pul. 416; Cole i>. Goodwin, 19 Wend. 251; from recent decisions, does not apply to 
 
 Le Conteur v. London, etc., R. Co., L. K. 1 steamboats on lakes and rivers. Harris v. 
 
 Q. B. 54. Moody, 30 ST. T. 266; Gillettu. Ellis, mil. 679. 
 
 '■ Hutch, on Car., § 86; Ang. on Car., § 140 
 Tower v. Utioa, etc., R. Co., 7 Hill, 47: 
 Cohen ». Prost, 2 Duer, 335; Hollister v. 
 Nowlen, 19 Wend. 234; VTilloughby v. Hor 
 ridge, 74 Eng. Com. Law, 742; Brind v. 
 Dale, 8 Car & P. 207; White v. Winnisira 
 met Co., 7 Cash. 165; Miles v. Cattle, 6 Bing. 
 743 ; Orange County Bank v. Brown, 9 Wend 
 
 8 Da Costa v. Edmunds, 4 Camp. 141. 
 
 I Brown v. Cornwell, 1 Root, 60; Milward 
 i>. Hibbert, 3 Ad. & E. (N. 8.) 120. 
 
 8 Merchants', etc., Ins. Co. v. Shillito, 16 
 Ohio St. 559; Gould v. Oliver, 4 Bing. N. C. 
 134; Chubb v. Renand, 16 L. R. (N. s.) 492; 
 The Star of Hope, 17 Wall, 651; The Para^ 
 gon. Ware, 322; Harris v. Moody, 30 N. T. 
 
 85. 266; Taunton Copper Co. v. Merchants' 
 
 = East India Co. «. Pullen, 2 Stra. 690. Ins. Co., 22 Pick. 108; Paterson u. Black, 
 
 * Anth. 76. 6 Upper Canada Q. B. 481. 
 '' Dodge V. Bartol, 6 Greenl. 286 ; Wolcott » 4 Bing. N. C. 134. 
 
 V. Insurance Co., 4 Pick. 429; Taunton Cop- 
 
222 ' IN DIFFEEENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 vessels was recognized, and in Harris v. Moody,^ part of the cargo of a steam- 
 boat. From two recent cases it appears that when custom requires the 
 carrying of certain goods on deck or in the cabin, to carry them in the hold 
 will render the carrier liable in the event of their being damaged.' 
 
 A carrier by water is also liable for damage done to the goods of a shipper, 
 stowed in the hold of his vessel, through contact with other goods.' But this 
 rule, also, usage may alter ; * as by showing that, according to the usage of the 
 trade, salt in sacks was stored with other goods,* flour upon hogsheads of 
 sugar,^ gunny-cloth, and bags, close up to the upper deck,' the carrier will be 
 discharged from liability for a loss which but for the usage he must have 
 assumed. In the last of these cases the court, in deciding the question, said: 
 " Now, it having been shown that this cargo was stowed in accordance with an 
 established usage, vehy is not that decisive in favor of the libellants? It has 
 been earnestly and ably contended that it is not, but that this usage is of such a 
 character that it is to be rejected and disregarded. What is its character? It 
 is a usage as to the mode of stowing a cargo of merchandise for a sea-voyage — 
 a usage of trade as to the details in the mode of carrying it on. It violates 
 no rule of law or principle of public policy, but is a matter of business between 
 private individuals, to be regulated by them. There is no controversy that the 
 parties may make a contract for any mode of storage which they may see fit. 
 What contract have they made in this respect? In the absence of expressed 
 stipulations, the usage of the trade answers this question; to that usage the 
 contract tacitly refers, not to contradict or vary its terms, but for expounding 
 its meaning and supplying details in the mode of its e?;ecution. Let us look into 
 this charter-party. It contemplates the conveyance by sea of a full cargo of 
 great value by a long voyage, and yet not a word is said as to the manner in 
 which that cargo shall be protected at the bottom, at the sides, or on the top. 
 Not one word is said as to the navigation of the ship, by how many or what kind 
 of officers and seamen, or sails or rigging, or other essential requisites for the 
 voyage. The contract being silent in this respect, how are the rights and duties 
 of the parties to be ascertained? The answer is, by the usage of the trade." 
 
 § 85. Delivery by Carrier aa controlled by Custom. — Mr. Hutchinson says : 
 " The delivery required of the common carrier has, by usage and legal construc- 
 tion, come to have very different significations, according to the particular kind 
 of business which he undertakes and the various modes of conveyance which 
 he employs in its transaction; and that which constitutes a delivery in one case, 
 or as to one kind of carrier, will not be considered as sufficient for the purpose 
 when performed by another, the particular nature of whose employment as car- 
 rier or whose mode of carriage may be different. In this regard the usages of the 
 various kinds of carriers have conformed to the necessities of commerce, and the law, 
 
 1 30 N. Y. 267. And sec Barber v. Broco, Bearse v. Ropes, 1 Sprague, 331; The Obe- 
 
 ^ ^°""- ^- sbire, a Sprague, 28. 
 
 no^.^i^'l."" ^''''"''"^»«' S J"- (N. s.) 4 01ai* V Barnwell, 12 How. 272; Baxter 
 
 f U™^ ®"" "' '*'""'- " ^''"- ^^- "• I-eland. 1 Blatchf . 626 ; Lamb v. Parkman, 
 
 3 Grllespie v. Thompson, 6 El. & Bl. 477; 1 Sprague 343 
 
 Brousseau « The Hudson, 11 La. An. 427 ; « Clark '». Barnwell, 12 How. 272. 
 
 Oranwell v The Panny Posdick, 16 La. An. . Baxter v. Leland, 1 Blatchf. 526. 
 
 436, The Colonel Ledyard, 1 Sprague, 630; 7 Lamb v. Parkman, 1 Sprague 343 
 
COMMON CARIilBRS. 223 
 
 Usage a6 to Delivery by. 
 
 in its turn, seems to have been made to conform to such usages." ' And again : ' 
 "The manner in which the various classes of common carriers are required to 
 make delivery has now become so well settled that a case could but seldom 
 occur in which it could not be at once determined without a resort to the proof 
 of usage or custom. Not only have the usages of those who ply the business of 
 carrying goods for hire for the public, in the various modes and according to 
 their various professions, become universally understood, but as to those into 
 whose hands the great bulk of the carrying business of the country has fallen* 
 most of the questions of doubt as to the manner in which they are required to 
 make the delivery of the goods to the consignee, or party entitled to them, have 
 been settled by judicial decision ; and whenever such questions now arise, judi- 
 cial notice will generally be taken of their several modes of delivery, as matters 
 of law rather than of fact as to usage. It is still, however, the duty of most of 
 those who are classed as common carriers to make personal delivery to those 
 for whom the article carried is intended ; and whenever the carrier engaged in a 
 particular mode of carrying, as to which the kind and manner of delivery required 
 have not been so established, claims that he is exonerated by the long-existing 
 and uniform course of his business from making a personal delivery, the pre- 
 sumption of law will be against his claim, aud he must overcome it by proof. 
 Delivery to the person for whom the goods are intended, or to whom they are 
 consigned, being the rule, he must bring himself within the exception by showing 
 a long-continued and well-understood usage . ' ' And in an Illinois case, Caton, J., 
 says: "While the convenience of commerce may require different rules for the 
 delivery of goods when transported by sail or steam vessels on the great lakes, 
 on the rivers, on the canal, or by railroad, by plank or the common roads, it 
 would be very inconvenient for each commercial point on these thoroughfares 
 to establish an independent usage by which the same contract would receive 
 different constructions, depending upon the place at which it was to be per- 
 formed. Where the necessities of any particular line of commerce may ren- 
 der a particular usage so indispensably necessary as to commend itself to, and 
 force itself upon all those engaged in that line of commerce, there may be great 
 propriety in allowing such usage, when it has become universal and well under- 
 stood, and acquiesced in by all, to be proved in order to explain the intention of 
 parties upon points as to which the contract itself is not explicit, although with- 
 out such usage the law might give it a different construction. This is allowed 
 upon the same principle which allows other extraneous facts to be proved, in 
 view of which parties have entered into engagements, and by the aid of which 
 their 'intentions are ascertained where otherwise they might be doubtful. 
 Hence, in construing a bill of lading or other contract for transporting freight, 
 we must look to the mode of transportation by means of which the contract is 
 to be performed — as, if by water-craft, navigating either the lakes, rivers, or 
 canals, it is not to be presumed that the delivery is to be made away from the 
 watercourse ; or, if by railroad, away from the track or depot of the road, unless 
 it is otherwise expressly stipulated in the contract. If, however, this is expressly 
 stipulated, that would show an intention that the carrier should use other 
 means of transportation than those usually employed in the course of such 
 trade. Such expressed intention would destroy the presumption that the con- 
 
 1 Hutch, on Car., § 338. 2 Id., § 342. 
 
224 IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 tract was to be performed by the means of transportation in ordinary use by tlie 
 party undertaking to perform it. In construing contracts of affreightment, the 
 courts the^mselves take notice of the course of trade, and the means of transpor- 
 tation in use in carrying on that commerce ; and, in aid of the means of informa- 
 tion which the courts are supposed to possess in reference to commercial trans- 
 actions, usages which the necessities of a particular trade have established have 
 been allowed to be proved to the courts, to aid them in giving a construction to 
 contracts made in reference to such trade." ' 
 
 § 86. Delivery by Carrier — Continued. — As with the delivery to the carrier 
 the liability of the carrier commences, so with the delivery to the consignee the 
 liability of the carrier ends. At first it was looked upon as the duty of common 
 carriers to deliver the goods to the consignee personally. "A contrary deci- 
 sion," said ASHHUKST, J., in an old case,'' " would be highly inconvenient, and 
 would open the door to fraud; for if the liability of the carrier were to cease 
 when he brought the goods to any inn where he might choose to put his coach, 
 and a parcel containing plate or jewels brought by him were lost by him before 
 it was delivered to the owner, the latter would only have a remedy against a 
 common porter." But wfien this rule was established, the carriage of goods 
 was done throughout England by coach-owners and wagoners, who were able to 
 go about from house to house, if necessary, to make delivery of the property 
 intrusted to their care. It was, therefore, early relaxed in the case of foreign 
 ships, whose undertaking, by custom, was merely to carry from port to port. 
 And for the same reason, and on grounds of convenience, the strict rule as to 
 personal delivery is not applied to either domestic carriers by water or carriers 
 by railroad. The former " are confined to the limits and courses of the waters 
 upon which they navigate their vessels, and cannot leave them with their 
 vehicles of transportation to seek the consignee or other person entitled to the 
 goods upon the land." The latter, like carriers by water, "cannot deliver at 
 tlie warehouse or other place of business of the consignee without the employ- 
 ment of other means of transportation than such as they employ upon their 
 tracks." But express companies are within the old rule.' 
 
 ' Caton, J., in Dixon o. Dunham, 14 in. 324. to the consignee's request, is not a good 
 
 2 Hyde V. Trent Nav. Co., 5 Term Eep. 389. delivery. It was claimed by the carrier that 
 
 3 Hutch, on Car., §§ 341-370 ; Eedf . on Rys., by custom, if a cargo of grain carried by a 
 § 157; Cope v. Cordova, 1 Kawle, 203, post, vessel from a port in another State to the 
 § 94. Concerning delivery at elevators, as is port of Buffalo consists of two or more Dar- 
 therule as toan important part of the inland eels consigned to different persons, under 
 commerce of this country, we find the fol- bills of lading containing no other proyi- 
 lowmg note of a decision of Interest in the sions as to delivery than that the grain shall 
 New York Dailu Register for August, 1880: be delivered to the consignee or his assigns. 
 
 Among the new methods which give rise the person who is the consignee of the major 
 
 to new questions of law is that of the use of part of the cargo may appoint and direct at 
 
 elevators. n the grain trade. A recent deci- what elevator his part shall be delivered, 
 
 sion of the Buffalo Superior Court, of gen- and that the discharge of the whole cargo 
 
 eral importance, holds that a consignee of into the elevator so designated is a good 
 
 even a part of a cargo of grain arriving has delivery as to each of the several parcels, 
 
 aright to select the elevator into which his though the consignee of the minor parcel 
 
 part shall be discharged; and that a dis- may have given express and timely direc- 
 
 chaige by the carrier to another, contrary tions that his parcel be delivered at another 
 
COMMON CARRIERS. 225 
 
 Notice as Affected by Usage. 
 
 But even carriers by land who were able, and upon whom devolved the duty 
 of making a personal delivery, — such as coach-owners and cartraen,' — might 
 show that the common and well-known usage of their business did not require 
 it, and in such cases a personal delivery would not be necessary. In &arside 
 V. Trent Navigation Company,' decided in 1793, evidence of usage was received 
 to determine whether the defendants, at the time the goods were burned, held 
 them as common carriers or warehousemen. In Hyde v. lZVe»f Navigation Com- 
 pany,' decided about the same time, the judges agreed that while carriers by a 
 canal were bound to make a personal delivery to the consignee, their obliga- 
 tion might be changed by the custom of trade ; and the same principle has been 
 frequently recognized in the American decisions.* 
 
 § 87. Notice required by Law, but ■waived by TTsag'e. — The established rules 
 •of law, however, require of the carrier that he shall give notice of the arrival of 
 the goods to the proper person, in order that he may have an opportunity 
 of removing them at the earliest moment.* The course of business be- 
 tween the carrier and his customers may entirely do away with this necessity. 
 ■" The effect of usage in doing away with the requirement of notice in cases of 
 carriers by water," says a writer from whom we have already quoted at some 
 length,' " is one of Importance, especially in river navigation. Such carriers, 
 especially upon our Western rivers, rarely, if ever, give notice to the consignees 
 of freight which is put off for them at the numerous places of landing upon 
 these streams, unless the delivery be at some port. It seems to have grown 
 into a universal understanding in such cases that the mere deposit of freight 
 
 elevator. The court held that the carrier ^ 6 Term Rep. 339. 
 
 failed to establish the existence of the al- * Gibson v. Culver, 17 Wend. 305; Eagle v, 
 
 leged custom, and that in the absence of White, 6 Whart. 605; Chickering v. Fowler, 
 
 such a proven usage the rule of the common 4 Pick. 371; McOarty v. New York, etc., E. 
 
 law— that the carrier shall deliver the goods Co., 30 Pa. St. 247; Witzler v. Collins, 70 Me. 
 
 to the assignee at his place of business — 290 ; The Felix, 2 Ad. & E. 273 ; Petrochino v. 
 
 prevails in respect to grain and other car- Bott, L. K. 9 C. P. 355. 
 
 goes carried in bulk by vessels engaged in ' Wardell t>. Mourillyan, 2 Esp. 693 ; 
 this inland trade; and that a different rule, Quiggin v. Duff, 1 Mee. & W. 174; Packard 
 which had its origin in the usages of the v, Getman, 6 Cow. 757; Scholes v. Acker- 
 ocean trade, and is applicable to general land, 15 111. 474; Crawford v. Clark, 15 111. 
 ships engaged in that traffic, has no force or 561 ; Fiske v. Newton, 1 Denio, 45 ; Price 
 application in respect to that class of our v. Powell, 3 N. Y. 322 ; Pickett v. Downer, i 
 inland commerce to which the question in Vt. 21. See, as to railroads, Moses v. Bos- 
 this case relates." The case referred to does ton, etc., E. Co., 32 N. H. 523; Thomas v. 
 not, as yet, appear to have been officially re- Boston, etc., E. Co., 10 Mete. 472; Norway 
 ported. Plains Go. v. Boston, etc., S. Co., 1 Gray, 
 ' Aug. on Car., §295; Add. on Con. 810; 2 263; McMasters ». Pennsylvania E. Co., 69 
 Kent's Comm. 604; Hyde v. Trent Nav. Co., Pa. St. 374; Porter u. Chicago, etc., E. Co., 
 
 5 Term Eep. 389 ; Golden v. Manning, 3 Wils. 20 111. 407 ; Eickard v. Michigan, etc. , E. Co., 
 429 ; Smith v. Nashua, etc., E. Co., 27 N. H. 86 ; 20 lU. 404 ; Chicago, etc., E. Co. v. Scott, 42 
 Storr O.Crowley, 1 McCl. & Y. 136; Steph- 111.132; Merchants' Despatch Co. ». Hallock, 
 ensoni;. Hart, 4 Bing. 476 ; Garnett «. Willan, 64 lU. 284; McCarty ». New York, etc., E. 
 
 6 Bam. & Aid. 53; Bodenham v. Bennett, 4 Co., 30 Pa. St. 247; Shenk i;. Propellor Co., 
 Price, 34; Duff v. Budd, 3 Brod. & B. 177; 60 Pa. St. 109; Leavenworth, etc., E. Co. ii. 
 Birkett v. Willan, 4 Barn. & Aid. 356; Gibson Maris, 16 Ean. 333; Alabama, etc., E. Co. v. 
 V. Culver, 17 Wend. 305. Kidd, 35 Ala. 209. 
 
 s 4 Term Eep. 581. ° Hutch, on Car., § 366, note. 
 
 IS 
 
226 IN DIFFERENT KELATION8 AND OCCUPATIONS. 
 
 Common Carriers. 
 
 upon the bank of the river at the usual place of landing is all that the carrier is 
 expected to do. Having grown into a universal custom, and being so under- 
 stood between the parties, there can be no doubt but that the carrier, in so 
 depositing ordinary freight, has done his duty, without giving notice to the con- 
 signee." The effect of such a usage is learnedly discussed in the opinion of the 
 Supreme Court of Vermont in the leading case of Farmers and Mechanics^ 
 Bank v. Champlain Transportation Company,^ given in full at the commence- 
 ment of this chapter. In many other cases, evidence of a similar character has 
 been held to be admissible, viz. ; that it was customary with the merchants of 
 B. to receive their goods on the wharf, and not have them put into the store- 
 house ; that they took charge of them themselves immediately upon their being 
 landed, and usually took them away the same day; but if there was a probability 
 of their being damaged by remaining exposed to the weather, or if they were 
 considered unsafe on the wharf, it was customary, if the owner did not come 
 and taie charge of them, to put them into the storehouse ; ^ that it was the 
 uniform course of business of the defendant line of stages to leave goods or 
 freight transpo;rted by it, directed to T., at the stage-house there, and not to 
 deliver the same at the residence or place of business of the consignee ; that the 
 usage prevailed on the whole course of the line to leave goods or freight at 
 the usual stopping-places of the stage in the towns to which the goods were 
 directed, to be delivered to the consignees when called for ; ' that by the custom 
 at N., steamboats deliver freight by putting it on the wharf and exhibiting in 
 some public place a manifest of the cargo ; that freight thus placed upon the 
 wharf is hauled away by the consignees or boss-draymen without any special 
 notice, the consignees and the draymen themselves taking notice of the arrival 
 of boats and of freight for them, if any; * that at a way-station where the busi- 
 ness of a railroad was not of sufHcient importance to warrant the erection of 
 warehouses or to have freight-agents, there was a notorious custom, acquiesced 
 in by all persons in the neighborhood receiving freight, to deliver goods at the 
 station without storing them, and without notice." In a New York case, where 
 it appeared to have been the custom of the plaintiff's agent to receive from the 
 defendant's wharf the daily shipment of goods from his factory, his carman 
 going daily to the wharf and conveying the goods to the store of the con- 
 signee, the court held that from the long-continued practice the consignee must 
 have known that, in the ordinary course of business, goods arriving from the 
 factory by defendant's line would be awaiting him each day at the wharf; saying 
 that where a regular business is thus carried on, a specific notice from the 
 carrier of the arrival of each parcel is not necessary, and that his duty is per- 
 formed when he has landed the goods at the accustomed place and the con- 
 signee has had a reasonable time to remove them.' In Dixon v. Dunham,'' by 
 the terms of a bill of lading of a vessel, the defendant agreed to transport from 
 Buffalo to Chicago certain goods and deliver them to the plaintiff, who was the 
 
 = Jf7"V."^'-'*^'''''^'-'^'''"""''P-^^- "Russell Man. Co. v. New Haven steam- 
 
 » Bhn V. Mayo 10 Vt X^ boat Co., 50 N. Y. 121 ; Ely ». Nevv II,we« 
 
 Gibson V. dulver, 17 Wend. 305. Steamboat Co., 53 Bai-b. 207. And see Wood 
 
 < Huston V. Peters, 1 Meto. (Ky.) 558. „. Milwaukee, etc.. B. Co.. 27 Wis 541 
 
 s MoMaetors v. Pennsylvania R. Co., 69 ' Mill 324 ■ . . 
 Pa. St. 374. 
 
COMMON CAKRIERS. 227 
 
 Usage as to Delivery. 
 
 consignee at Cliicago. Both the plaintiff and defendant owned wharves at 
 Chicago. The goods being brought to the defendant's wharf, he notified the 
 plaintiff that they were there, but the latter refused to receive them unless 
 delivered to him at his own wliarf. The Supreme Court of Illinois ruled that 
 under the terms of the contract the captain of the vessel was bound to deliver 
 the goods to the plaintiff at the place of business of the latter, if he had one 
 convenient, in the port of Chicago ; but that it was competent for the defendant 
 to set up a usage in the port of Chicago that goods should be delivered at the 
 wharf selected by the master of the vessel, and that consignees should receive 
 them there ; and a custom in Chicago that a consignee of a vessel is allowed one 
 day after notice of her arrival in which to provide a dock or place for unload- 
 ing her, has been recognized.' 
 
 Where it is the custom at lake ports for grain-bearing vessels to unload in the 
 order of their arrival, the ship-owner must await his turn for a reasonable time, 
 to be measured by the ordinary volume and the exigencies of trade at that place ; 
 and it has been held that, such a custom being reasonable, it is not within the 
 power of a ship-owner, by notice to a consignee, to define an arbitrary period 
 within which his cargo must be discharged.* And a custom at the port of Bal- 
 timore to stop discharging cargoes of brimstone when there is a high wind, 
 because brimstone is a substance liable to be blown away in the handling neces- 
 sary to unload it from the ship, has been held a sufficient justification on the 
 part of a consignee of a load of brimstone in refusing to receive it on a windy 
 day.' A usage at New York to receive shipments during the quarantine sea- 
 son at the quarantine grounds would excuse a delivery there where the bill of 
 lading expressed the delivery to be made at the " port of New York." * 
 
 § 88. Cases wbere an alleged Custom as to Delivery did not prevail. — 
 In Galloway v. Hughes,^ the court, after hearing the witnesses to the alleged 
 custom, ruled that, according to the usage at Charleston, landing cotton on the 
 wharf was not a fulfilment of the carrier's contract to deliver, but that it should 
 have been deposited in the public stores in the consignee's name. In The 
 Sultana v . Chapman,' the jury found that a usage set up by the defendants to 
 deliver goods at a pier extending into Lake Michigan, instead of at the ware- 
 house or place of business of the consignees, was not established, and the court 
 refused to disturb the verdict. In The Mary Washington v. Ayres, decided in 
 the United States Circuit Court for the District of Maryland by Chief Justice 
 Chase,' merchandise transported by water was landed at the carrier's wharf, and 
 no one being there to receive it, was placed in their warehouse on the wharf, 
 whei'e, before it was removed by the consignees, it was damaged. No notice 
 had been given of its arrival. It was held that the carrier was liable. "The 
 duty of a carrier by water," said the chief justice, "is not fulfilled by 
 
 ■ Fulton ti. Blake (U. S Dist. Ct. North. der, 98 Mass. 322; Consolidation Coal Co. d. 
 
 Diet. III.), 12 Am. L. Eeg. (N. s.) 779. Shannon, 34 Md. 144. 
 
 " The M. S. Bacon v. Erie, etc., Transp. ' BertoUati v. A Cargo of Brimstone (U. 
 
 Co. (U. S. Cir. Ct. West. Dist. Pa.), 11 Pittsb. g. Dist. Ct. Dist. Md.), 11 Cent. L. J. 364. 
 
 L. J. 35. And see Cross v. Beard, 26 N. Y. 85 ; * Bradstreet v. Heron, Abb. Adm. 209. 
 
 Rogers v. Pon'ester, 2 Camp. 485 ; Banister ' 1 Bailey, 553. 
 
 V. Hodyson, 2 Camp. 488; Cronche'- v. W\' ' B Wis. 454. 
 
 ' 5 Am. L. Re/?. (N. S.l «92. 
 
228 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Commou Carriers. 
 
 simple transportation from port to port. The goods must be delivered, 
 or at least landed, and a reasonable opportunity given to the consignee of 
 ascertaining their condition. In order that opportunity for inspection and for 
 the removal of the goods may be given, the consignee must be notified of the 
 arrival of the goods. This is the general rule. If exceptions are made by 
 usage, circumstances, or special arrangements, they must be shown by proof. 
 In the present case, the respondents allege that it was not their practice to give 
 notice to consignees ; but, instead of giving such notice, to deposit goods in their 
 warehouse, where the consignees were expected to call for them on learning 
 from their coiTCsponderits, or otherwise, of their arrival. They insist that this 
 arrangement was for the benefit of the owners of the goods, and was under- 
 stood and agreed to by them. The evidence does not sustain this claim. It 
 shows clearly enough the practice of the respondents, but it does not show any 
 understanding on the part of the owners of the goods that the respondents 
 were to be relieved from their responsibility as carriers until its actual delivery, 
 or its equivalent deposit in their warehouse, with information conveyed to the 
 owners in some way that their goods had arrived. The warehouse arrangement 
 was rather for the convenience of the carriers than of freighters or consignees. 
 The storage, with information of arrival, however obtained, may be regarded 
 properly enough as a substitute for actual and direct notice; and it may be 
 admitted that opportunity for removal, after such information, would discharge 
 the carriers from responsibility as such, in the same manner as actual notice 
 and like opportunity. But to hold that mere deposit in their own warehouse, 
 under the circumstances of this case, terminated their special responsibility, 
 would be a dangerous relaxation of the salutary rule on which the security of 
 commerce so largely depends." The custom of lake ports, that on the failure 
 of consignees to provide for the delivery of the property consigned to them, for 
 twenty-four hours after the report of its arrival, the master of the vessel is 
 entitled to store the freight, subject to charges, at the nearest port, is not a 
 reasonable one at Port Colborne, on Lake Erie, where there is no facility for the 
 discharge of the cargo except at one place, and where it is the custom of the 
 port lor vessels to wait their turn at that place. ' 
 
 § 89. Cannot prevail against Express Directions. — Usage, however, cannot 
 be set up as against the express directions of the shipper, or an express contract 
 between the parties, and such directions the carrier will disobey at his peril.' 
 A few examples of this rule will suffice: M., a common carrier, received from 
 W. an anchor, with directions to deliver it to "Messrs. Bell, Anchram & Bux- 
 ton, Rotherhithe." M. delivered it at Kotherhithe, instead of to the persons 
 specified. A custom on the part of carriers not to concern themselves about 
 goods after they had been delivered at the wharf did not protect M.' S. deliv- 
 ered a horse to a railroad company to be transported from Boston to Portland, 
 with orders to have it placed in a close car. The horse was carried in an open 
 car, and sustained damage. The railroad was held liable for the damage, 
 although it was its custom to carry horses in either kind of a car indiscrirai- 
 
 1 Strong V. Oarrington (U. S. Diet. Ct. i Wavdell v. Mourillyan, 2 Esp. 693. And 
 
 North. Dist. N. Y.) , 2 Am. I,. Keg. (N. S. ) 287. see Stieoter v. Hoilook, 1 Bine. 84. 
 
 - Hutch.' on Car., § 310. 
 
COMMON CAKKIEKS. 229 
 
 Express Directions Govern. 
 
 nately.i The agent of a steamship company at Havre gave B. a bill of lading 
 of certain goods, which the company undertook to carry to Liverpool on its 
 steamship and there transship them on board the City of Manchester, which was 
 appointed to sail on September 6th, and failing shipment by her, then by the 
 first steamship sailing after that date. The goods, however, arrived at Liverpool 
 earlier than was expected, and in time for the City of Philadelphia, one of the 
 company's steamships, which sailed on the 30th of August. The defendant 
 company theref6re placed a portion of them on the City of Philadelphia, and 
 that vessel being lost on the voyage, it was held that they were liable for the 
 deviation, notwithstanding a custom among shippers that goods should be 
 shipped to their destination with all possible dispatch, and by the first vessel 
 sailing after their arrival at Liverpool.'^ So, in a late English case the defendant 
 chartered a vessel from the plaintiff for a particular voyage. In the charter- 
 party it was agreed that, after loading, the vessel should proceed to a safe port 
 In the United Kingdom, or on the continent between Havre and Hamburg, both 
 ports included, as ordered, or "so near thereto as she could safely get," and 
 deliver the cargo on being paid freight. The vessel, on being ordered for Ham- 
 burg, sailed for that port ; but on account of her draught of water she could not 
 get nearer to Hamburg than Stade, at which place the plaintiff offered to deliver 
 the cargo, or so much of it as would lighten the ship and enable her to proceed. 
 The defendant refused to accept any of the cargo at Stade ; and in order to earn 
 the freight, the plaintiff discharged part of the cargo into lighters, in which it 
 was conveyed to Hamburg, and there delivered to the defendant's agent. The 
 vessel, being thus liglitened, arrived at Hamburg and delivered the remainder of 
 the cargo. The action was for breach of the charter-party in refusing to accept 
 any of the cargo at Stade, and the plaintiff claimed as damages the expense in- 
 curred by him for lighterage from Stade to Hamburg. The defendant pleaded a 
 custom of the port of Hamburg, by which he was not bound to accept at any 
 place but Hamburg. But the Court of Appeal held that the custom of Ham- 
 burg could not override the express agreement in the charter-party,, and that the 
 plaintiff was entitled to the lighterage expenses.^ And where wheat was to be 
 transported by the carrier to New York on account and order of one Bissell, and 
 the bill of lading contained the memorandum, " Notify E. S. Brown, N. Y.," and 
 the carrier delivered the wheat to Brown instead of Bissell, it was held not 
 admissible to show that by the custom at New York, under such bills of lading, 
 property was rightly delivered to the person to be notified.* But a custom that 
 bills of lading for merchandise shipped are delivered only to the party holding 
 the receipt of the master or agent of the vessel, and upon its surrender, has 
 been recognized in New York.* , 
 
 § 90. Delivery on prombited Days. — The carrier must not land the goods, 
 nor can he require the consignee to accept them or take them away on the Sab- 
 
 1 Sagem. Portsmouth, etc.. R. Co., 31 Mb. ings ». pepper, 11 Pick. 41; The Star of 
 228. Hope, 17 Wall. 651. 
 
 2 Bazin t>. Steamship Co., 3 Wall. jr. 229. '' Hayton v. Irwin, 28 Week. Rep. 138. 
 And see Express Co. v. Kountze, 8 Wall. i Bank of Commerce v. Bissell, 72 N. Y. 
 342; Dunseth v. Wade, 3 111. 286; Magliee 615; Farmers', etc., Bank ». Erie R. Co., 72 
 V. Camden, etc., R. Co., 45 N. Y. 514; Hast- N. Y. 188. 
 
 '■> Blossom V. Ohavnpion, 37 Barb. .'554. 
 
230 IiV DIPfEKBNT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 bath, or upon any day on which labor is forbidden. But that a certain day is a 
 iioliday by proclamation or statute will not, unless labor be also interdicted, 
 afford any excuse to the consignee for not receiving and removing the goods ; 
 and if he fail to do so, and they are lost during the delay, he, and not the carrier, 
 must bear the loss. Therefore, in Bichardson v. Cfoddard,'' a day appointed by 
 the governor of Massachusetts as a general fast-day, and in Russell Manu- 
 faetwring Company v. New Haven Steamboat Company,'' the 4th of July, were held 
 to be proper days on which to tender and receive the goods. "But in the first 
 case the court, after resolving that there was no law in the State of Massa- 
 chusetts prohibiting the transaction of business on the day in question. Inquired, 
 first, whether there was any general custom or usage engrafted into the com- 
 mercial or maritime law prohibiting the unlading of vessels and a tender of 
 freight to the consignee on a day set apart for a church festival or fast ; and, 
 secondly, whether there was any special custom in the port of Boston, where 
 the goods were brought, forbidding a carrier to unload a vessel on such a 
 day, and compelling him to observe it as a holiday. Answering the first question 
 in the negative, the court (Gbibr, J., delivering the opinion) say: "After a 
 careful examination of the testimony, we are compelled to say that we find no 
 sufficient evidence of such a peculiar custom in Boston, differing from that of all 
 other commercial cities in the world. The testimony shows this, and no more : 
 That some persons go to church on that day ; some close the windows of their 
 warehouses and shops, and either abstain from work, or do it privately; some 
 work half the day, and some not at all. Public officers, school-boys, appren- 
 tices, clerks, and others who live on salaries or prefer pleasure to business, 
 claim the privilege of holiday, while those who depend on their daily labor for 
 their daily bread, and cannot afford to be idle, pursue their occupations as usual. 
 The libellants appear to have had no conscientious scruples on the subject, as 
 they received goods from other ships, and some from this. But the testimony is 
 clear that, however great the number may be who choose to convert the day into 
 a voluntary holiday for idleness or amusement, it never has been the custom 
 that vessels discharging cargo on the wharves of Boston ceased on that day; 
 that, like the canon law regarding church festivals and holidays of other coun- 
 tries and former ages, the custom of Boston, if it amount to anything more 
 than that every man might do as he pleased on that day, did not extend to 
 vessels engaged in foreign commerce, or forbid the carrier to continue the 
 delivery of freight on that day." And in the New York case" the court said: 
 "The 4th of July is not a legal holiday, except for certain specified purposes not 
 affecting this case. It presented no legal obstacle to the removal of the goods. 
 But we think that the evidence as to the usage claimed by the plaintiff to exist 
 in respect to receiving goods on that day should have been submitted to the 
 jury, and that they should have been charged, as requested, that in case there 
 was such a usage or established course of dealing in that respect as was claimed 
 by the plaintiff, the consignee was entitled to a reasonable time after that day 
 to remove the goods." 
 
 I 33 How. 28. 3 Russell Man. Co. v. New Haven St Jam ■ 
 
 - 50 N. 1 . 131. And soo Ely v. Manhattan boat Co., 50 N. Y. 121. 
 Slciiraboat Co., 63 Barb. 207. 
 
COMMON CARKIEKS. 261 
 
 Delivery by Express Companies. 
 
 § 91. Means for Delivery. — If, by the usage of the place and trade, the appli- 
 ances for the delivery of heavy articles are furnished by the consignees, the 
 carrier will not be liable for injuries to the goods caused by defects in such 
 appliances.' 
 
 § 92. XJsaEre may enlarge the Carrier's Duty. — Usage, however, may enlarge 
 the duty of a railroad company, and make it necessary, in order to discharge its 
 ■o')!igation, that there should be something approaching to a personal delivery — 
 as, where it has been the custom of a railroad to deliver cars loaded with lumber 
 for the plaintiff at or near the plaintiff's place of business, it will not be excused 
 in a later case by delivering the lumber at its depot.* And, therefore, where it 
 appeared that according to the custom of a steamboat its hands were, on arrival 
 at New Orleans, in the habit of taking the passengers' trunks from the boat to a 
 railroad station and getting them checked, it was held that the owners of the 
 boat were liable for a non-delivery at the railroad.' 
 
 § 93. Complete Delivery not affected by Usase. — We have seen, In a former 
 section,* that, the delivery to a carrier being complete, a usage on his part that 
 the delivery is not considered complete will not affect the case. A similar rule 
 prevails as to delivery by a carrier. In Beed v. Eichardson,^ the plaintiffs shipped 
 nine bales of cotton from Lady's Island to Savannah, on a sloop, but only six 
 of them were received at the defendants' warehouse, and the question was 
 whether there had been a delivery of the whole number by the master of the 
 vessel to the defendants. No receipt was taken for them by the master; and the 
 defendants offered evidence of a usage of the port of Savannah that in order to 
 ■constitute a delivery of water-borne goods by the carrier it was necessary for a 
 receipt to be given by the consignee or his agent, and until then the liability of 
 the carrier continued. It was held that this evidence was properly rejected. 
 "The usage in question," said the court, "is objectionable and invalid, for it 
 tends to contravene the fixed rule of law. By the common law, a carrier is dis 
 charged of his duty when he has made an actual or constructive delivery at the 
 proper place and time. Doubtless, usage may regulate the manner of delivery, 
 or the time when or the place where it may be made. This would be within the 
 legitimate range of the operation of a usage. But it cannot prescribe or deter- 
 mine that acts which the law declares to be a delivery shall not be sufficient to 
 ■constitute it. Such was the effect proposed to be given to the evidence in the 
 •case at bar. Delivery at the appointed time and place would not have proved a 
 fulfilment of the contract if the usage was to have effect." 
 
 § 94. Express Companies and Delivery by. — We have seen in a former sec- 
 tion,6 that express companies are not within the modern rule allowing common 
 <M,rriers to dispense with a personal delivery to the consignee. To this modifi- 
 cation of the old law express companies owe their origin. Depositing in 
 warehouses, whether with or without notice to the consignee or owner, with the 
 
 ' Lovelana v. Burke, 120 Mass. 139. * Ante, § 82. 
 
 2 Pittsburg, etc., E. Co. v. Nash, 13 Ind. ' 98 Mass. 216. 
 
 423. » Ante, § 86. 
 
 " Fisher ». Gcddes, 15 La. An. U ; Nevins 
 «. Bay State Steamboat Co., 1 Bosw. 225. 
 
232 IN DIFFERENT KELATION8 AND OCCUPATIONS. 
 
 Common Carriers. 
 
 requirement that he should call for them, was found to be unsuitable for the car- 
 riage of small and valuable parcels, as well as troublesome to the consignees. 
 To avoid this inconvenience, as well as to secure greater safety and dispatch in 
 the transportation and delivery of valuable packages, carriers who undertook to 
 make delivery to the consignee personally, although their line of travel might be 
 identical with those of the water carrier and the railroad carrier, and even 
 though they might employ the vehicles of these carriers to effect the transporta- 
 tion, became necessary.' Starting in the United States in 1839, in a humble way, 
 the express business now extends into every State of the Union; is carried on 
 by numerous wealthy and powerful corporations, with an invested capital of 
 over thirty millions of dollars, and carrying for the government and private 
 individuals over two billions of dollars' worth of property every year.' But 
 precisely as these modern carriers have become rich and powerful, have they 
 endeavored to cast off some of the duties to perform which they came into- 
 being. Among them is the duty of personal delivery; and, as will be seen pres- 
 ently, the courts, while showing an unwillingness to relax this obligation, have 
 in one or two instances permitted an express company to show a usage on its- 
 part not to perform its full duties.' 
 
 § 95. Same — Oases -where Usage did not prevail. — In a Pennsylvania case, 
 where a demijohn of brandy being sent from P. to K. was received by the com- 
 pany's agent at K. and stored in Its warehouse, where It was afterwards broken, 
 the defendant gave evidence that it was customary for the agent at K. to deliver 
 packages at the residence of the consignee, at his option; but the court held that 
 a personal delivery was absolutely required of expressmen, and that the defend- 
 ant was liable.* In a New York case, where an expressman undertook to- 
 deliver a heavy box for the plaintiff, who lived In the fourth story of a building, 
 by placing it within the outside door of the building, at the foot of the stairs, and 
 notifying a boy whom he found in the office, the plaintiff not being in, it was 
 ruled that the delivery was insufficient, and could not be cured by a usage to so 
 deliver heavy articles. " It is very plain," said Eobbktson, J., " that a custom 
 so ill-defined as this should not be allowed to trench upon settled rules of law, 
 for the weight or the bulk of the articles remains entirely uncertain; be- 
 sides. It does not appear that this usage was well known to all persons dealing 
 with such companies, nor was its origin and continuance for any length of time 
 shown. Nor dodWdt seem to me that such a usage could ever begin to establish 
 a legal custom; the delivery of goods at a tavern or known stopping-place of 
 the carrier, where they are always in charge of some one,^ or on a wharf, after 
 giving notice and allowing a reasonable time for a consignee to take possession, 
 Is entirely different from abandoning parcels intrusted to a common carrier in 
 an exposed place and notifying the owners that they are so abandoned. It 
 
 - Hutch, on Ca^. § 379 99 Mass. 2.59 ; Packard v. Earle, 113 Mass. 280; 
 
 0«„t T T°I»"' '^''^'•""''> "*"■• «■ ^°- ^^ »"""'«"> Express Co. .. Armstead, 60 Ala! 
 
 »t . >, . "^"^ American, etc., E.-cpress Co. v. Kobin- 
 
 » Marshal v. Amcncan Express Co.. 7 son. 72 Pa. St. 274; Witbock v. Holland. 45- 
 
 Wis. 1, Baldwin v. American Express Co., N. V. 13: 55 Barb 443 
 
 WoH "cJin «;r.'f "" • '""" f '"',™'' ''"• "■ ' American, eic. Express Oo. v. Itobia- 
 
 Wolf. ,9111.430; American, etc.. Express Co. son. 72 Pa St 274 
 
 „. Schier. 55 111. 140; Sullivan .. Thompson, ' 5 Gibson v. Culver, 17 Wend. 305. 
 
COMMON CARKIEK8. 233 
 
 Delivery by Express Companies. 
 
 would in all cases be a very doubtful chance whether the owner in a fourth 
 story or a marauder in the street would first reach the prize, even supposing 
 the owner or his representative ready at all times to rush swiftly down-stairs, 
 and able to carry the package up, which was too heavy for the driver; and, 
 indeed, the box in this case does not seem to have been one which the only per- 
 son notified (a boy of fourteen years of age) could have readily transported to 
 a fourth story. The law is exceedingly jealous of any innovation upon the 
 responsibility of common carriers, even by express contract, much more by . 
 usages, and the express business most of all requires that the most uniform and 
 constant dereliction of duty, however successful, should not enable carriers to 
 evade liability for a lost parcel committed to their care, by getting up a usage." ' 
 
 §96. Same — Usage permitted to relax their Obligations. — But, notwith- 
 standing the reasons of public policy to which the court in Baslam v. Adams 
 Express Company appealed, and which must be sufficiently obvious to the 
 student, it will be found that, "by getting up a usage," express carriers 
 have in several instances been permitted by the courts to escape a liability to 
 which the established rules of law would have held them. In several cases itais 
 said that evidence of usage in such matters will be looked upon with suspicion, 
 but that at places where the business of an express company is not sufficient to 
 justify the lieeping of a messenger, a custom on its part to substitute notice for 
 delivery will be sufficient.' A custom of delivering packages after banking- 
 hours has been adAitted to make valid a delivery which otherwise would have 
 been invalid,' and so of a delivery to the officer of a bank.* In two cases, 
 decided in the same year, but in different States, usage was successfully relied 
 upon to excuse a delivery to a person other than the one to whom the package 
 was addressed. In Southern Express Company v. Everett,^ a small paper box 
 containing a diamond breastpin, and addressed "Miss Theodosia Everett, 
 Female College, Macon, Ga.," was delivered to the agent of the company at Fort 
 Valley, Georgia, for transportation to the address given. The box was duly 
 transmitted to Macon, and delivered to Dr. Bonnell, the president of the female 
 college, unopened ; and he handed it to Miss Everett, who opened it and found 
 the breastpin wanting. Miss Everett was a student at the college. In a suit 
 for the loss, the trial court charged the jury that the delivery to Dr. Bonnell was 
 not a legal delivery which would discharge the defendants. But the Supreme 
 Court of Georgia reversed the case, Warner, C. J., saying: "The general rule 
 is that the responsibility of the carrier ceases with the delivery of the goods at 
 destination, according to the directions of the shipper or according to the cus- 
 tom of the trade. A delivery of goods to a duly authorized agent of the owner 
 or consignee is a sufficient delivery. The person to whom the box was 
 addressed, the record shows, was a student in the college under the charge of 
 Dr. Bonnell, and, as we infer from the record, was a minor. Was it one of the 
 rules of the college that all articles and communications addressed to the 
 
 1 Haslam ». Adams Express Co., 6Bosw. a Marshall v. American Express Co., 7 
 
 235. Wis. 1. 
 
 s Baldwin i7. American Exijress Co., 23 i Hotohkiss ». Citizens' Bank, 42 Barb. 517. 
 
 HI. 199; Amei'ican, etc., Express Co. «7. » 37 Ga. 688. 
 Schier, Kill. MO; Gulliver «. Adams Express 
 Co.. 38 111. 503. 
 
234 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 students therein should be first delivered to the president thereof? What was 
 the custom of the president of this college in receiving parcels addressed to the 
 students under his charge, from the defendant? If it was the custom for Dr. 
 Bonnell, the president of the college, to receive from the defendant parcels 
 directed to the students therein under his charge, and receipt therefor, or if it 
 was in accordance with the rules of the college that he should do so, then he 
 might properly be considered as the authorized agent of the students under his 
 . charge for that purpose, and the jury might presume a good delivery of the 
 parcel to the student of the college to whom it was addressed, when delivered 
 to the president thereof." In Sullivan v. Thompson,^ a box marked "Wm. 
 Sullivan, Government Bakery, Washington, D. C," upon arrival at Washington 
 was delivered by the defendants' agent to one Everett, a clerk in the govern- 
 ment bakery in which Sullivan was employed. When the box was delivered to 
 the clerk, the plaintiff was not present in the office, nor was he sent for; and the 
 box never came into his hands. On the trial, the defendants offered to show that 
 during the period while Everett was clerk at the bakery it was the uniform usage 
 for all expressmen bringing parcels there, addressed to any of the men there 
 employed, to deliver the same at the office to some one of the clerks therein at 
 the time, taking his receipt therefor, without notice to the consignee ; but the 
 judge excluded the evidence. This was held, on appeal, to be error. "All their 
 reasonable usages," said Chapman, C. J., "would enter into their contract 
 and become a part of it, and their liability would be limited by such usages. 
 These usages consist in methods of doing business ; and vvlfen a party employs 
 them to carry a package, and asks for no special stipulation, his implied proposal 
 is that they shall carry and dispose of the package in the same manner as they 
 are accustomed to do with such packages, provided it be reasonable; and this is 
 the proposal which they impliedly accept, and it constitutes the contract, except 
 so far as it is varied by express stipulations. Some of their usages are adopted 
 with reference to the compensation charged by them. It is important to the 
 public that goods be carried as cheaply as possible, and in order to meet this 
 want it is expedient to adopt usages which shall save expense. The usage may 
 relate to the delivery of goods. The usage of the defendant in this respect is 
 stated in the report. The only question that can arise respecting it is, whether 
 it is reasonable. This must depend somewhat upon the character of the prop- 
 erty to be delivered. If It were a heavy article, of no great value, and which 
 might safely be left exposed, it might be reasonable to leave it on the premises 
 where the consignee resides, in an exposed position. On the other hand, if It 
 were a package of money, or article of similar value, it might not be reasonable 
 to deliver it even at the office or counting-room of the consignee without put- 
 ting It in the care of some reliable person. In the present case it was a box of 
 clothing. It was delivered within business hours at the office of the govern- 
 ment bakery, which was the only part of the bakery where the defendants- 
 agents could go, to a government clerk there employed, who alone occupied the 
 office and had charge there, and who received the parcel for the plaintiff and 
 gave a receipt therefor. This was in conformity with the well-known usa-e of 
 the managers of the bakery and with the usage of the defendants. Considering 
 the nature of the property and the circumstances, the court are of opinion that 
 
 ' 9D Mass. 269. 
 
COMMON CAERIEBS. 235 
 
 Connecting Carriers. 
 
 the usage was not unreasonable, and that defendants fulfilled their contract if 
 they delivered the box in conformity with it." The conclusion in this case may 
 be correct ; but the remarks of the chief justice indicate a readiness on his part 
 to carry the usages of trade, and especially those of common carriers, to an 
 extreme and dangerous point. When, subsequently, in the same court, Sullivan 
 V. Thompson was cited, Endicott, J., remarked that " it was decided on the 
 peculiar circumstances and facts of the case, and has no application to the 
 question raised here," and the court (Chief Justice Chapman not then being a 
 member) held that a usage on the part of expressmen to leave packages at a 
 way-station, and to substitute a notice of the arrival of the goods for a personal 
 delivery, could not bind the consignor unless known to him.' Yet it is to be 
 observed that the court was still prepared to uphold the usage, had it been 
 proved to have come to the knowledge of the plaintiff before he made the con- 
 tract. But why should express companies be permitted to set up a usage on 
 their part doing away with the necessity of a personal delivery? They were 
 established for the purpose of extending to the public the advantages of a per- 
 sonal delivery in cases of land carriage, which, prior to the introduction of the 
 railroad, were enjoyed by the public. A custom of an express company not to 
 be liable as an express company is absurd, and should not be recognized by the 
 courts. Such a custom may well be considered as one contrary to public policy, 
 and as such, as we shall presently see, void." 
 
 The obligation of an expressman, on the refusal of the goods, to give notice 
 thereof to the consignor,' may be excused by custom.* Where it is the custom 
 of an express company to enter all packages before delivery in a delivery-book, 
 and upon which a receipt is taken upon the delivery, if no such entry has been 
 made upon the delivery-book it will not be presumed that the company has done 
 its duty.* 
 
 § 97. Connecting' Carriers. — A shipper is bound by the custom of a carrier 
 not to be liable for a package delivered to him beyond the limits of his own line, 
 but that upon his placing it in the hands of a connecting carrier his liability 
 shall cease.^ A custom that an intermediate carrier, who receives property 
 subject to charges, may deduct from the freight earned by a prior carrier the 
 value of any deficiency between the quantity delivered and that stated in the bill 
 of lading, and that the prior carrier shall not be allowed to show that an error 
 occurred in stating the amount in the bill of lading, is not valid, because con- 
 trary to law and unreasonable.' Where there is a bill of lading given, by a 
 carrier to the terminus of his line, of goods addressed to a point beyond, he may 
 show a custom in such cases to deliver to a connecting carrier.' Where it is the 
 general custom of the carrier to forward all goods destined beyond his line by 
 
 1 Packard w. Earle, 113 Mass. 280. « Van Santvoord ». St. John, 6 Hill, 157; 
 
 2 Post, Chap. V. Indianapolis, etc., E. Oo. u. Murray, 72 111. 
 s Kramer v. Southern Express Co., 6 128. 
 
 Coldw. 366; Mayell v. Potter, 2 Johns. Oas. ' Strong v. Grand Trunk K. Co., 15 Mich. 
 
 371; Fi6k v. Kewton, IDenio, 45; American, 206. 
 
 etc., Express Co. v. Wolf, 79 111. «0. ' Hooper v. Chicago, etc., B. Co., 27 Wis. 
 
 1 Weed V. Barney, 45 N. Y. 344. 81. 
 
 5 Baldwin v. American Express Co., 23 111. 
 197. 
 
236 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 sailing-vessels, he is not liable for not forwarding particular articles by steam- 
 vessels, unless distinctly olrdered to do so.' But where the usage is for the 
 carrier to deliver beyond the terminus of his own line, he will be responsible in 
 accordance with the usage.* 
 
 § 98. The Carrier's Charges. — The carrier's reward, — viz., the amount which 
 he is entitled to receive for his services, — if not fixed by agreement, will be regu- 
 lated by custom ; and, ordinarily, he can only recover his customary charges.' If 
 a carrier does not stipulate in advance for the rate and terms of his compensa^ 
 tion, he is entitled to demand and receive what is usual in the given case. If he 
 rely upon usage and custom for the rate of compensation, and they allow none 
 in the given case, he will be entitled to none.* A carrier's charges being higher 
 for "wrought " than for "unwrought " marble, evidence that the usage among 
 manufacturers, dealers, and carriers was to class marble cut into slabs as 
 "unwrought," was held to be properly received, in a Michigan case, where the 
 question was whether the carrier was entitled to claim freight on the goods in 
 question as "wrought marble." * In an English case, the plaintiff brought an 
 action for money had and received in respect of certain alleged overcharges for 
 certain packed parcels. The plaintiff's business was to collect parcels from 
 different tradesmen, to put the parcels into one package, and to send it by the 
 defendants' railroad. It was proved that the defendants issued a tariff of their 
 rates, and that the plaintiff was charged under it for " packed parcels." On the 
 trial, evidence was given (subject to defendants' objections) that four wholesale 
 houses in London were in the habit of sending packages containing their own 
 goods and also the goods of other tradesmen, and that they wisre never charged 
 for packed parcels, but at a less rate. The houses in question were not asked 
 as to the contents of their packages, and it did not appear that the company had 
 direct information on the point. Evidence was also given that in 1849 (the 
 action was brought in 1865) it was proved, at an arb Oration in the presence of 
 defendants' solicitor, that it was the practice of the London houses to send 
 packed parcels, without charge, by the defendants ; and the foUowing question 
 was allowed by the court: "Has this practice of packing parcels been noto- 
 rious ? " and it was answered, that for the last forty years it had been so.general 
 as to be notorious among carriers. The judge directed the jury that the above 
 was evidence upon which they might find that parcels had been carried by the 
 defendants for other persons, containing goods of a like description, and under 
 like circumstances, at a less rate; and also upon which they might find that the 
 defendants knowingly charged the plaintiff more than others, and that if the jury 
 believed that the defendants knowingly and purposely charged the plaintiff at 
 a higher rate upon a packed parcel than other persons, they ought to find a 
 verdict for the plaintiff. The Court of Exchequer Chamber (Eele, C. J., dis- 
 senting) held the evidence properly received aud the direction correct.^ In a 
 
 1 Simkina v. Norwich Steamboat Co., 11 , b Bancroft v. PeterB, i Mich. 619. 
 Cash. 102. e Sutton v. Great Western R. Co., 11 Jnr. 
 
 Knapp V. United States Express Co., 65 in. s.) 879. And see Lewis v. Marshall, 7 
 
 N. H. ;M8 
 
 Man. & G. 729, where the evidence oiferod 
 
 Ang. on Car., §$ 124, 356, 392; Bastard was hold insufficient to prove tlial, by the 
 
 tr. Jiastard, Show. 81; Holford v. Adams, 2 us.-ige of the trade, steerage -passengers ona 
 
 Duer, 471 ; Weber v. Kingsland, 8 Bosw. 416. ship were considered as ■' cargo " aud their 
 
 Kntland ii. Montgomery, 1 Swan, 4J2. passage money as " freight." 
 
COMMON CAKKIEKS. 237 
 
 Usage as to Charges. 
 
 South Carolina case it was held that, in an action to recover freight for carrying 
 the defendant's rice from his plantation to Charl^ton, the latter might give 
 evidence of a custom on the river to look to the produce and consignee alone for 
 freight.' 
 
 Where freight is paid in advance, and in consequence of the capture or ship- 
 wreck of the vessel, or other cause not imputable to the consignor,' the goods 
 are not carried to their destination, the freight is not earned, and may be 
 recovered back,' unless there be an express contract to the contrary.* This 
 rule, it is held in Emery v. Dunbar,^ cannot be altered by usage. The defend- 
 ants' ship, on which were the plaintiffs' goods, was destroyed by a Confederate 
 cruiser. In a suit for the freight, which they had paid before the sailing of the 
 vessel, the defendants set up " that at the time of the payment of the freight it 
 was, and from time immemorial thereuntil had been, the custom and usage 
 of the United States of America and of the State of New York, and of the 
 ship-owners, shippers, and merchants of, and of the shippers from the said 
 United States of America and State of New York, that said freight so paid 
 in advance is paid unconditionally, and not subject to the risk of the voyage, 
 and is not repaid, but is retained by the ship-owner, provided that the goods 
 be taken on board and the voyage commence or have commenced." The 
 plaintiffs demurred to this answer ; the demurrer was sustained, and on appeal 
 this ruling was sustained. "Where a general rule or principle of law like 
 this," said the Supreme Court, "has been long and well established, it cannot 
 be controlled by proof of any usage to the contrary. This disposes of the 
 defendants' answer." In the older case of Frith v. Barker^ (1807), one hun- 
 dred and ninety hogsheads of sugar had been shipped at S. to be delivered at 
 N. ; but during the voyage, owing to a leak in the ship, the contents of fifty 
 of them were lost, and but a hundred and forty were received by the consignee, 
 who refused to pay freight on the residue. In a suit for the freight on the fifty 
 hogsheads, the plaintiff offered to prove that by the usage of merchants at N., 
 freight was payable for the empty casks, under the circumstance of this case. 
 A verdict being taken by consent for the full amount, subject to the opinion of 
 the Supreme Court, it was there held that the plaintiff was entitled to a verdict 
 for only one hundred and forty casks. Kent, C. J., who delivered the opinion 
 of the court, after stating the law to be that no freight is due for goods which are 
 destroyed during the voyage, said : " The next point is whether evidence of usage 
 in contradiction to this rule was admissible ; and if it was, whether the usage 
 proved went the length of establishing that freight was in this case due for the 
 sugar that was destroyed. * * * The testimony did not show that this usage 
 
 1 Middleton <,. Hay ward, 2 Uott & M. 9. 1 Camp. 84; Griggs v. Austin, 3 Pick. 20; 
 And see Hayward v. Middleton, 3 McCord, Phelps v. Williamson, 6 Sandl. 578; Lawson 
 121. V. W^orms, 6 Cal. 365 ; Cope v. Dodd, IS Pa. St. 
 
 2 Detoaohes v. Peck, 9 Johns. 210; Giles 33; Brown ». Harris, 2 Gray, 359. 
 
 V. The Cynthia, 1 Pet. Adm. 207; Griggs v. * De Silvale v. Kendall, 4 Man. & Sel. 37; 
 
 Austin, 3 Pick. 20 Jackson v. Isaacs, 3 Hurl. & N. 405 ; Hicks 
 
 8 Minturn v. Warren Ins. Co., 2 Allen, 86 ; v. Shield, 7 El. & BI. 633 ; Atwell v. Miller, 11 
 
 Bennerc. Equitable, etc., Ins. Co., 6 Allen, Md.348; Kinsman v. New York Ins. Co., 5 
 
 a; Chase v. Alliance Ins. Co., 9 Allen, 311; Bosw; 460. 
 
 Manfleld «. Maitlaud, i Bam. & Aid. 582; « 1 Daly, 408. 
 
 Pitman v. Hooper, 3 Sumn. 66; Watson v. 6 2 Johns. 327. 
 Duykinck, 3 Johns. 337; Mashjter a. BuUer, 
 
238 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 existed If the contents of the casks had been lost by the means of the sea 
 perils during the course o# the voyage. I presume that no such usage exists. 
 It would be repugnant to the general rule of the maritime law. The true 
 import of the testimony offered was, that the master is entitled to his freight 
 notwithstanding the ordinary diminution of an article, arising either from its 
 nature or the defect of the cask. It becomes, therefore, immaterial to examine 
 whether this evidence of usage was or was not strictly competent; but as the 
 question is frequently suggested, it may be proper to observe that though usage 
 Is often resorted to for explanation of commercial instruments, it never is or 
 ought to be received to contradict a settled rule of commercial law." 
 
 § 99. Power of Carrier to sell Goods In his Cbar^e. — Except in cases 
 of emergency and necessity,' a carrier has no authority whatever to sell the 
 goods intrusted to his care ; and a sale by him without express authority can 
 pass no title, even to a purchaser in good faith and for a fair price,' and although 
 the sale may have been for the purpose of realizing his unpaid charges.' But 
 the usage of the trade may alter this rule, and render such sales valid to protect 
 the purchaser.* In a Massachusetts case, however, where a master of a stranded 
 vessel had sold the goods, instead of having made an effort to carry them to 
 another port, where they would have realized a much better price, the court 
 ruled that the sale was not under necessity, was therefore void, and was not 
 helped by a usage for the master of a stranded vessel to sell the cargo without 
 necessity. " Necessity only," said Putnam, J., "will authorize the sale. A 
 usage to sell without necessity would be void." ' 
 
 § 100. The Carrier's Lien as affected toy ITsagre. — The carrier has at common 
 law, as security for compensation for his labors and for any advances which 
 he may have made for the benefit of the goods in his charge, a lien upon such 
 goods; that is, a right to retain possession of them until his charges have been 
 paid or tendered. This lien, however, extends only to charges and advances 
 upon the particular goods upon which it is claimed, and Is called a particular 
 lien, for the law does not allow him a general lien for any balance which may be 
 due to him from the owner on other accounts or transactions between them.6 
 The courts have been said to guard jealously the limits of this rule, and to 
 refuse to allow an extension of it.' Therefore, while permitting the carrier to 
 avail himself of a general lien by an express contract, they have refused to 
 allow him its advantages from a simple notice from him to his customers that 
 
 ' Notara v. Henderson, L. B. 6 Q. B. 346 ; Hoffman v. Noble, 6 Meto. 68 ; BaUey v. Shaw, 
 
 Arthur v. The Casaiua, 2 Story, 81; Pope v. 24 N. H. 297. 
 
 Nlokerson, 3 Story, 465; Post v. Jones, 19 s Western Transp. Co. v. Barber, 56 N. Y, 
 
 How. 150; The Gratitudine, 3 Bob. Adm. 240; S44; Hunt v. Haskell, 24 Me. 339 ; Indianiipo- 
 
 The Veloria, 3 Ware, 139; The Mohawk, 8 lis, etc., E. Co. v. Herndon, 81 111. 143. 
 
 ^*'^- ^*- ■• Taylor v. Wells, 3 Watts, 65; Bapp v. 
 
 ' Lickbarrow ». Mason, 6 East, 21; White Palmer, 3 Watts, 178; Pickering v. Busk, 15 
 
 t>. Webb, 15 Conn. 302; McCombie v. Davios, East, 44; Bryant v. Commercial Ins. Co., 6 
 
 6 East, 538; Agnew v. Johnston, 22 Pa. St. Pick. 131; Kemp v. Coughtry, 11 Johns. 107. 
 
 471; Powell ». Buck, 4 Strobh. 427; Swift ' Bryant«;.CoramerclalIns.Co.,6Pick.l31. 
 
 V. Moseley, 10 Vt. 208 ; Lecky v. MoDermott, • Eushlorth v. Hadfield, 6 East, 522 ; HartB- 
 
 8 Serg. & B. 500; Kltoholl v. Vanadar, 1 home e. Johnston, 2 Halst. 108. 
 
 Blaokf. 35B; Doane v. Kussell, 3 Gray, 382; i Ang. on Car., { 357 ; Hntch. on Car., § 477. 
 
COMMON CARKIEB8. 239 
 
 Usage as to Liens. 
 
 he will transport their goods only on that condition.' Yet before usage the 
 courts have given way, and permitted this "encroachment upon the common 
 law " to flourish, though they did not recede without a struggle. In JBushforth 
 v.Sadfleld,^ which arose in the King's Bench in 1805, at the trial before Gkaham, 
 B., of an action of trover, the defendant's counsel offered evidence to show that 
 by the usage of the trade throughout the realm, common carriers had a right to 
 retain particular goods belonging to a party for their general balance, due from 
 the same party for the carriage of other goods belonging to him. A number of 
 witnesses were called to prove the usage, among them the defendant's book- 
 keeper, who testified to two instances in twenty years. Five other carriers were 
 introduced, who remembered a number of cases In which they had held goods 
 for a general balance till it was paid. The plaintiffs insisted that the evidence 
 did not show a general usage, but Graham, B., thought that, being uncontra- 
 dicted, it admitted of that conclusion, and directed the jury that if they found 
 that such was the general, undisputed usage, it established the right of the 
 carriers. The jury found for the defendants, but on application to the King's 
 Bench a rule absolute was granted for a new trial. All the judges thought the 
 verdict ought not to stand. Lord Ellbnboeough, C. J., said: " There was no 
 sufficient evidence on which the jury could find any such general usage as would 
 warrant the conclusion of an agreement between the parties to adopt it. The 
 lien claimed by the carriers for their general balance is not founded in the com- 
 mon law ; tot by the custom of the realm a common carrier is bound to carry 
 the goods of the subject for a reasonable reward, to be therefore paid, by force of 
 which he has a lien only for the carriage price of the particular goods. Then, 
 what proof is there of any further lien by usage? I will not say that there may 
 not be sufficient evidence of such a general usage for the carrier to let out of his 
 hands the particular parcel on which his common-law lien attaches, without 
 receiving the carriage price of It at the time, upon a general agreement, of which 
 such usage would be evidence, that he may retain anj» parcel belonging to the 
 same party for the whole of his demand ; but such a general usage ought to be 
 proved by stronger evidence than was offered in this case, especially as it 
 trenches upr)n the common-law right of the subject. But if there be a general 
 usage of trade to deal with common carriers in this way, all persons dealing in 
 the trade are supposed to contract with them upon the footing of the general 
 practice, adopting the general lien into their particular contract. The case, 
 however, does not appear to have gone to the jury in this view of it. There 
 had been previous dealing between these parties, and there might have been 
 evidence to show, if such had been really the case, that it was understood 
 between them that the carriers were to have a lien on any parcel of goods in 
 their hands for the carriage price of those which had been antecedently 
 delivered ; but that was not resorted to, but it was left to the jury as a case 
 turning on the general usage of carriers throughout the realm to have a lien for 
 their general balance, witljout any sufficient evidence before them to warrant 
 them in drawing so extensive a conclusion. The oldest instance which could be 
 particularized was not above five years ago; and but one instance, and that only 
 
 > MoFarland v. Wheeler, 26 Wend. 467; » 6 East, 622. 
 
 Kirkman ». Shawcross, 6 Tei'iii Rep. U; 
 Wright ». Snell, 5 Barn. & Aid. 350. 
 
240 IN OIFFfiKENT KELATIONS AND OCCUPATIJXS. 
 
 Common Carriers. 
 
 two years ago, of the exercise of the claim to any considerable amount, so as to 
 make it worth while to resist it. To justify, however, so extensive a claim upon 
 the ground of general usage, there ought to be evidence of instances more 
 ancient, more numerous, and more important." Grose, J.; "I should object 
 to making a precedent in a case of this sort, where a general conclusion is to be 
 drawn from such insufficient premises. A carrier may have a lien either at com- 
 mon law for the carriage of the particular goods, upon which there is no 
 question, or it may arise out of the usage of trade, or by a particular contract 
 between the parties concerned. If it could be claimed by the general usage of 
 trade, I should rather have thought that it should have been coeval with the 
 common-law liability of the carrier ; but, at any rate, there was no evidence here 
 sufficient to warrant the jury in finding any such general usage in trade. And 
 as to any lien in respect of a particular contract, it was not left to the jury on 
 that ground." Lawrence, J.; "I agi-ee that there ought to be a new trial. 
 Common carriers are every day attempting to alter the situation in which they 
 have been placed by the law. At common law they are bound to receive and 
 carry the goods of a subject for a reasonable reward, to take due care of them 
 in their passage, and to deliver them in the same condition as when they were 
 received ; but they are not bound to deliver them without being paid for the 
 carriage of the particular article, and therefore they have a lien to that extent. 
 Of late years, however, they have been continually attempting Xo alter their 
 general character, by special notices on the one hand to diminish their liability, 
 and on the other hand by extending their .lien. But what evidence have we in 
 this case to say that their common-law situation is altered? To do that, it must 
 be shown that both parties have consented to the alteration ; the carrier cannot 
 alter his situation by his own act alone. It is said that a general lien is conven- 
 ient to the parties concerned. I do not say that it may not be so, but it must 
 arise out of the contract of the parties. It may be convenient enough for the 
 customer to say that in (Tonsideration that you — the carrier — will give up your 
 right to stop each particular parcel of goods for the price of the carriage, I will 
 agree that you may stop any one parcel of my goods for the carriage price of aU 
 together. But still this must be by contract between them; and usage of trade 
 is evidence of such a contract. And where such a usage is general, and has 
 been long established, so as to afford a presumption of its being commonly 
 known, it is fair to conclude that the particular parties contracted with reference 
 to it. Then, if in this case there had been evidence of a usage so uniform and 
 frequent as to warrant an inference that the parties contracted with reference to 
 it, it should have been left to the jury to infer that it was part of their.coatract." 
 Le Blanc, J.; "I doubt whether the jury had this case presented to them m 
 the true light in which, by law, it should have been, for it was left to them to 
 find for the defendants upon the bare ground of there being evidence of a general 
 usage amongst carriers to retain for their general balance; but no usage of car- 
 riers would be sufficient to bind other parties, unless it were so general as to 
 furnish an inference that the party who dealt with a carrier had knowledge of it, 
 and so to warrant a conclusion that he contracted with a carrier on that ground. 
 General liens are a great inconvenience to the generality of traders, because 
 they give a particular advantage to certain individuals who claim to themselves 
 a special privilege against the body at large of the creditors, instead of coming 
 
COMMON CAKKIERS. 241 
 
 Usage as to Liens. 
 
 in with them for an equal share of the insolvent's estate. All these general liens 
 Infringe npon the system of the bankrupt laws, the object of which is to dis- 
 tribute the debtor's estate proportionately amongst all the creditors, and they 
 ought not to be encouraged. But I do not mean to say that a usage in trade may 
 not be so general and well established as to induce a jury to believe that the 
 parties acted upon it in their particular agreement; and I cannot say that such 
 an agreement would not be good in law, although a carrier might have no right 
 to refuse carrying goods for another without an agreement that he should have 
 a lien for his general balance, for that would be contrary to the obligation which 
 the law has imposed on him. The instances of detainer by carriers for the 
 general balance which were proved at the trial were very few and recent, with 
 a view to found so extensive a claim ; and the instance where goods of the value 
 of £10,000 were detained for £130 does not appear to me to assist the claim, 
 for the parties would naturally rather pay £130 — the amount of the balance due 
 to the carrier — than have goods of such great value detained from them till 
 the questions were decided at law. Without saying, therefore, that there may 
 not be such a usage as that insisted on, I am clearly of opinion that there should 
 be a new trial, in order to have the case submitted to the jury on its true ground, 
 which it does not appear to have been upon the last trial." On a second trial, 
 the jury found a verdict for the plaintiffs, and a rule being obtained to set 
 it aside, was discharged.' But twenty-two years later, in Holderness v. OolUn- 
 son,' the same court said: " Where the usage is general, and prevails to such an 
 extent that a party contracting must be supposed to be conversant of it, then he 
 will be bound by the terms of that usage; " and it may now be considered as 
 settled that carriers may, by the long-established and well-known usages of 
 particular localities, or of particular classes of those engaged in that business, 
 become entitled to retain the goods which come into their custody, for general 
 balances.' 
 
 Still another fundamental rule as to the carrier's lien may be altered by 
 custom and usage. It is a general rule that credit given by a carrier to the 
 employer for the price of the transportation, beyond the time when the goods 
 transported are to be delivered by the carrier. Is inconsistent with, and will 
 defeat the Hen.* In Baitt v. Mitchell,^ the defendants claimed a lien for repairs 
 on the plaintiff's ship. There was no agreement as to when the repairs were to 
 be paid for, and consequently the defendants' right seemed to be clear. But 
 the plaintiff having proved that, by the usage of the trade, where there was no 
 express contract as to the time of payment, the ship-owner gives credit for 
 repairs. Lord Ellbnborough ordered a verdict in his favor, saying: "I am 
 of opinion that in this case the defendants had no right to detain the plaintiff's 
 ship. It is distinctly proved that where there is no express stipulation for a 
 reaiiy-money payment, credit is invariably given by shipwrights in the river 
 Thames. The period of credit varies in the different trades in which ships are 
 employed ; but in each trade it appears to be uniform, and for the repairs of 
 
 1 7 Bast, 224. Mitchell, 4 Camp. 145; Cowell e. Simpson, 16 
 
 = 7 Barn. & Cress. 212. See also Rex v. Ves. 275; Chandler «. Belden, 18 Johns. 157; 
 
 Humphrey, 1 Mod. & Y. 191. Lucas v. Nockells, 4 Bing. 729. 
 
 » Hutch, on Car., § 477. '■ 4 Camp. 145. 
 * Pinney «/. Wells, 10 Conn. 104; Raitt v. 
 
242 m DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Common Carriers. 
 
 Indjamen we are told it is eighteen months, at the expiration of which time it 
 is expected they shall have returned from their voyages and put funds into the 
 hands of their owners by the freight they have earned. This being the invari- 
 able usage, I must consider it as the basis of the contract between these parties v 
 and their respective rights and liabilities are precisely the same as if, without 
 any usage, they had entered into a special agreement to the like effect. In that 
 case it seems to be admitted that no lien could be claimed. To be sure, a lien is 
 wholly inconsistent with a dealing on credit, and can only subsist where pay- 
 ment is to be made in ready money, or there is a bargain that security shall be 
 given the moment the work is completed. I do not say that a shipwright has 
 not a lien on a ship in his dock, where he is to be paid in ready money as soon 
 as the repairs are finished. On the contrary, I am inclined to think that he has 
 a lien, like other artificers. But there can be no lien without an immediate 
 right of action for the debt, and that does not accrue till the period of credit 
 has expired." So, in a later case, where goods were landed upon a wharf in 
 October, and by usage the wharfage was not paid until Christmas, it was held 
 that there could be no lien.' It has been held in the Supreme Court of the 
 United States that a frequent and general, but not universal practice in a par- 
 ticular port, on the part of ship-owners, to allow goods brought on their vessels 
 to be transported to the warehouse of the consignee and there inspected before 
 freight is paid, is not such a custom as vnll displace the right of the carrier to 
 demand freight on the delivery of goods on the wharf .^ 
 
 § 101. Bills ol Lading and restrictive Contracts. — Where the terms of a bill 
 of lading or other similar contract have acquired by usage a particular meaning, 
 the parties will be presumed to have used them in that sense.^ But the usage must 
 be uniform; and, therefore, if carriers on a particular river sometimes give bills 
 of lading containing an exemption from loss by fire, and at other times contain- 
 ing no such exemption, such a usage is not established, because not uniform; and 
 this, although in a majority of cases the exception was contained in the bills of 
 lading.* It has been expressly ruled in several cases that the common-law lia- 
 bility of a carrier -cannot be restricted by anything less than a contract, and that 
 a usage on the part of the carrier not to receive goods on any other terms than 
 on those of a limited liability cannot be invoked for his protection in any case.* 
 Thus, a usage not to be liable for accidental losses by fire,6 and not to accept 
 looking-glasses for transportation without exemption from breakage,' have been 
 held inadmissible. So, the sending of goods under a restrictive contract in any 
 number of instances does not bind the party sending them to a similar contract 
 in the future, without his agreement to tluit pffect; » though upon this point it is 
 
 ' Crawshay».Homfray,4Bara.&Ald.50. etc., R. Co v. Young, 28 Ind. 516; United 
 = The Eddy, 5 Wall. iSl. States Express Co. v. Rush, ai Ind. 403 ; Fat- 
 Wayne V. The General Pike, 16 Ohio, 421 ; ton r. Magrath, Dudley (S. C.) 159 ; Pitie v. 
 
 Rawson v. Holland, 69 N. V. ell. oifutt. 21 La. An. 679 ; Oranwell v. The Fanny 
 
 Cooper V. BeiTy, 21 Gn. 526; Berry ». Fosdick, 15 La. An. 436 
 
 Cooper, 28 Ga. 543. o Illinois, etc., R. Co. „. Smyser, 38 111. 354. 
 
 6 Illinois, etc., R. Co. v. Smyser, ,'i8 111. 354; ' The Pacific, 1 Deady, 71. 
 
 The Pacific, 1 Deady, 71 ; Coxe v. Heisley, 19 « McMillan «. Michigan, etc., R. Co., 16 
 
 la. St. 243; Clyde .;. Graver, m Pa. St. 251; Mich. 79; Erie, etc., Transp. Co. v. Dater.S 
 
 Garey v. Meagher, ,3S Ala. 630; Bvansville, Cent. L. J. 293. 
 
CORPORATIONS. 243 
 
 Capacity and Assent. 
 
 remarked by the Supreme Judicial Court of Massachusetts: "We do not mean 
 to be understood as saying that such assent and acquiescence may not be shown 
 by evidence drawn from a long and uniform course of dealing between the 
 parties, in connection with other circumstances leading to the inference that a 
 notice of a restricted liability on the part of the carrier was recognized by the 
 other party as constituting the agreement on which the contract of carriage was 
 to be performed. But such dealing and recognition must be tantamount to a 
 clear assent to the terms of the notice on the part of the owner and consignor, 
 or it will fall short of establishing a limitation on the common-law liability of 
 the carrier.'" And, though contrary to an Illinois case already referred to,^ it 
 has been ruled in New York that while a carrier cannot vary the liability which 
 attaches upon the receipt of goods for transportation without qualification, by 
 the delivery of a subsequent bill of. lading containing conditions, yet this 
 rule will be different if the parties have been in the habit of transacting their 
 business in that way.' 
 
 §102. Statutory Exemptions cannot be waived by Usage. — The United 
 States statute of March 3, 1851, exempting the owners of vessels, in case of loss 
 by Are, from liability for the negligence of their officers or agents in which the 
 owners have not directly participated, provides that nothing In the act "shall 
 prevent the parties from making such contract as they please, extending or lim- 
 iting the liability of such owner." It has been held by the Supreme Court of the 
 United States that the contract mentioned in the proviso must be one which 
 shows upon its face that it is so intended, and not one which may be construed 
 by custom to so intend.* 
 
 III. Corporations. 
 
 § 103. The Ancient Doctrines concerning Corporate Capacity and Assent 
 as affected by Usage. — It was an ancient doctrine of the common law that cor- 
 porations could express their assent only by m^ns of their seal, and they were 
 therefore considered incapable of making contracts, or of appointing agents or 
 attorneys to do any binding acts, except by a deed or power in writing under 
 their corporate seal.* This doctrine is now obsolete, but it owes its extinction 
 not to the courts, but to the practices of the corporations themselves, whose 
 usages the judges were compelled to follow. " However well established this 
 may have been as a rule of the courts, its extreme inconvenience must always 
 have effectually denied it currency as a rule of practice. It can hardly be 
 believed that in their daily commerce, for the necessaries and elegancies of life ; 
 for the decoration of their chapels and churches ; for the building and repairing 
 of their houses, and the tillage and improvement of their lands, the various 
 religious communities, anciently so numerous and so well endowed in England, 
 contracted only by deed. Of necessity, their superior and authorized agents 
 must have bought and sold, bargained and contracted for them without the 
 
 1 Pen-y v. Thompson, 98 Mass. 249. ^ Case of the Dean of Pernes, Davies, 121 ; 
 
 2 Illinois, etc., R. Co. v. Smyser.SS 111. 354. Manby v. Long, 3 Lev. 107; Horn v. Ivy, 1 
 ' Shelton v. Merchants' Despatch Transp. Vent. 47 ; Bailiffs, etc., of Ipswich v. Martin, 
 
 Co., SB N. Y. S. C. (J. & S.) 527. Cro. Jac. 411; Arnold v. Mayor, 4 Man. & G. 
 
 ' ^Valker 1/. Transportation Co., 3 Wall. 893; Taylor v. Dulwich Hospital, IP. Wms. 
 WO. 665. 
 
244 IN DIFFERENT RELATIONS AND OCCDPATION8. 
 
 Corporations. 
 
 delaying intervention of sealed instruments. Municipal corporations, too, 
 whose bargains and purchases must have been numerous in the most ancient 
 times for the improvement and defence of their towns, for articles of civic pomp 
 and display, can hardly be supposed to have contracted for them in all their 
 details by deed." ' How, little by little, the strictness of the old rule was broken 
 in upon by permitting at first matters of small moment, and at length transac- 
 tions of more importance, to be legal and valid, without the formality of a deed, 
 may be traced by the student who has leisure to examine the old cases ; but 
 to-day they are of value only as history.'' No such technical rule has hampered 
 in this country the business relations of individuals with corporations, since it 
 was laid down in the leading case of Bank of Columbia v. Patterson,^ by the 
 Supreme Court of the United States, that wherever a corporation is acting within 
 the scope of the legitimate purposes of its institution, all parol contracts made 
 by its authorized agents are express promises of the corporation, and all duties 
 imposed on them by law, and all benefits conferred at their request, raise implied 
 promises, for the enforcement of which an action will lie. Accordingly, a cor- 
 poration may be bound by the acts of its agents although not under its corpo- 
 rate seal, and even where they are not reduced to writing, except in those cases 
 where, by the provisions of the Statute of Frauds or otherwise, a contract must 
 be in writing to render it valid, if made by a private person.* 
 
 § 104. Officers and Agents ol Corporations. — Although, as has been said, 
 according to the ideal of a corporation, every act must be done by those who 
 represent it, yet many of its officers may do many things to bind the company, 
 in the line of their duties and sanctioned by usage ; otherwise, there would be no 
 such thing as getting on with business.^ The powers and acts of agents and 
 
 ' Ang. & Ames on Corp., § 22S. states, 6 Port. 183 ; Savings Bank v. Davis, 8 
 = Ma-xwell v. Dulwich Hospita!, 4 L. J. Conn. 303; Dnnn v. Rector of St. Andrew's 
 (Ch.) 131; Smith v. Birmingham GasLight Church, 14 Johns. 118; Overseers v. Over- 
 Co., 3 Nev. & M. 771 ; Mayor of Thetford's seers, 3 Serg. & R. 117 ; Palm v. Medina Ins. 
 Case, 1 Salk. 191 ; 3 Salt. 103 ; Arnold v. Mayor Co., 20 Ohio, 537 ; San Antonio v. Ferris, 9 
 of Poole, 4 Man. & G. S93 ; Rex «. Bigg, 3 P. Texas, 69 ; Eastman v. Coos Bank, 1 N. H. 26 ; 
 Wras. 419; Yarborough v. Bank of England, Bates v. Bank of Alabama 2 41a 453- Shel- 
 16 East, 6; East London Water-Works ^. don v. Fairfax, 21 Vt. 102: Legrand v. Hamp- 
 Bailey, 4 Bing. 383 ; Edwards v. Grand June- den College, 5 Munf. 334 ; White t.. Westport 
 tion Canal Co., 1 Myl. & Cr. 659; Smith v. Cotton Man. Co., 1 Pick. -IS; Garvey*. Col- 
 Cartwi-ight,6Exch.927; Murray,,. East India cock, 1 Nott & M. 231; Petrie v. Wright, 6 
 Co 6 Barn. & Aid 301 ; London, etc., R. Co. Smed. & M. 647 ; Baptist Church v. MuHord, 3 
 R T,'o "tt ^ • ^'' °'"' "■ ^''^'^' " <^- Halst. 182; Buncombe Turnpike Co.,;. McCar- 
 r;.»» mf ''^^'' "■ ^''"'•l^^"'"'"'- * »»••"• & 8on, 1 Dov. & B. 310; Abbot v. Hermon, 7 
 
 ^7 branch 299 *^™'"'- "* ' ^''"*'" ''• ^"""^ <"• Kentucky, S 
 
 4 A^„T„ , r, ^ . ''■•'■ Marsh. 301; Leo ,.. Trustees of Plem- 
 
 JiZu 7 . "■ ?'""'^' " ™«''' '"^^'""•S- ' »«"''. 28; Commercial Bank v. 
 
 Z: H^"""""^- Lycoming Ins. Co., 5 Pa. St. Newport Man. Co., 1 B. Mon. 14; Danforth .. 
 
 5T'Rannf^.r,T r^Z Z'"" '"'- " """■"■ S-^hoharie Turnpike Co., 12 Johns.230. Con 
 IL T, IT T"^ ^"'""' "■ ''°"™'"'' ' "•«• If'-ankfort Bank „. Anderson, 3 A. K. 
 Har. & J. 436; Plcckner v. United States Marsh 933 
 
 Bunk'fl W.!'n?.\f«'V?"'"''^;'' ''."""' '*'""'' ' OhanU.ersb«rg Ins, Co. v. Smith. 11 Pa. 
 
CORPORATIONS . 245 
 
 Usage as to Contracts. 
 
 officers of corporations acquired by usage and rendered valid by custom are dis- 
 cussed In anotlier place.^ 
 
 §105. Contracta not according to Mode prescribed — Usage. — Where the 
 charter of a corporation prescribes the particular mode in which its contracts 
 shall be made, that mode must be pursued.^ For the same reason, however, 
 which made it necessary to relax the ancient rules as to the mode in which a cor- 
 poration was required to act, and which have been stated in a previous section, 
 this rule has been modified, and corporate bodies have been held liable on 
 engagements entered into by their agents, though in a different manner from 
 that prescribed by their charters or articles of association. In the following 
 cases the corporations have been rendered liable on instruments issued and con- 
 tracts made by them, on proof of usage : An insurance company, on a policy 
 signed by the president and countersigned by his assistant, its charter providing 
 that " all policies of insurance made by said company, signed by the president, 
 or in his absence by the assistant and countersigned by the secretary shall be 
 binding on the company." ' An insurance company, on a bill of exchange signed 
 only by its president, the act of incorporation providing that "all notes and 
 contracts signed by the president and countersigned by the secretary shall be 
 binding on the corporation." * A banii, on a certificate of deposit signed by the 
 cashier only, the law under which it was incorporated requiring that " contracts 
 made by any such association, and all notes and bills by them issued and put in 
 circulation as money, shall be signed by the president and vice-president and 
 cashier thereof." ° A banking corporation, on a contract for services executed 
 by a less number of directors than the legal number.* An insurance company, 
 on an agreement signed by an agent giving the policy-holder permission to 
 remove his property, although the charter of the company required that all 
 agreements in relation to insurance should be signed by the president and secre- 
 tary of the company.' An insurance company, on a parol contract made by its 
 agent, although by its charter authorized only to make contracts by the signa- 
 ture of its president, or such other person as its rules and by-laws should direct.* 
 An insurance company, on a promise not under seal, it being only authorized to 
 "borrow money and issue its bonds therefor." ' A banking corporation, on a 
 bill of exchange indorsed by its cashier, though the, charter declared that its 
 funds should in no case be liable for any contract or engagement whatever 
 nnless the same should be signed by the president and countersigned by the 
 
 1 See Banks and Banking, ante, §§ 65-67. E. 12 Eq. 246; Bdgevly v. Emerson, 23 N. H. 
 
 « Ang. & Ames on Corp., §250; British 666. 
 
 Assnr. Oo. v. Brown, 12 C. B. 723 ; Dawes v. ' New England Fire Ins. Co. v. Sohettler, 
 
 North Kiver Ins. Co., 7 Cow. 462; Head «. 38111.166. 
 
 Providence Ins. Co., 2 Cranch, 127; Hill v. » Sanborn «. Tiremen's Ins. Co., 16 Gray, 
 
 Manchester Water- Works Co., 2 Nev. & M. 488. 
 
 673; 3 Bam. & Cress. 866. ' '"I imagine the bonds intended are 
 
 ' Bulkley v. Derby Fishing Co., 2 Conn. snch writings as are castomary and snf- 
 
 252; a»<e, p. 145. ficient for the purpose among business 
 
 * Witte V. Derby Fishing Co., 2 Conn. 260. men." Saffold, J., in McCullough v. Talla- 
 
 And see Safford v. Wyoko£E, 4 Hill, 442. dega Ins. Co., 46 Ala. 376. And see Jones 
 
 i> Barnes v. Ontario Bank, 19 N. Y. 152. v. Trustees, 46 Ala. 626; San Pi-ancisco Gas 
 
 « Bradstreet v. Bank of Eoyalton, 43 Vt. Co. v. San Francisco, 9 Oal. 471. 
 128. And see Be BoneUi's Telegraph Co., Ii. 
 
246 IN niFFERENT RELATIONS AND OCCUPATIONS. 
 
 Corporations. 
 
 cashier." An insurance company, on an agreement to insure, made by an agent, 
 though the charter provided that " all policies of insurance made by the corpo- 
 ration shall be subscribed by the president, or, in case of his death or absence, by 
 the vice-president, and countersigned and sealed by the secretary of the com- 
 pany." ' In an English case, seven days' notice vras required by the charter of a 
 bank previous to the transfer of shares, and this was held to be dispensed vpith 
 by the previous usage and practice of the bank." So, vfhere the deed of settle- 
 ment of a banking company allowed shares to be transferred upon obtaining 
 the "consent of the board of directors," which was to be evidenced by a "cer- 
 «ficate in writing, signed by three of the directors," and the practice of the bank 
 had been for the managing director to receive the applications and sign a cer- 
 tificate of consent, which was afterwards signed by two of the directors, it was 
 held that such transfers were valid.* Where the consent of the directors was 
 required to a transfer of stock by a stockholder indebted to the company, but in 
 the practice of the company such cases were never brought before the board, a 
 transfer made without such consent, but according to the usage of the company, 
 was considered good.^ "It is insisted," said the court in one case, "that a 
 majority of the directors could not bind the corporation. But we cannot regard 
 the presence and concurrence of all essential to the validity of their acts. It 
 would be nearly impracticable for them to fulfll the objects of their appoint- 
 mont under such a restriction. It would so clog and retard their operations in 
 the business with which they may be daily and hourly charged as to defeat the 
 beneficial exercise of their powers. So universal is the usage for a majority of 
 the directors of banks, insurance companies, and other corporations of this 
 description to act for the whole, that a power to do so may by general consent 
 be understood to be implied by their appointment."* 
 
 § 106. liien ol Corporation on Shares of Stockholder. — At common law, 
 no lien exists in favor of a corporation upon the shares of a stockholder who is 
 indebted to it.' The charter, articles of association, or by-laws may create such 
 a lien, and the shareholder be bound thereby,' except in the case of national 
 
 1 "In the judgment of the court, the ' Cram v. Bangor House Proprietary, 12 
 clause of the charter does not apply to such Me. 354. 
 
 contracts or engagements as occur in, or are 'Massachusetts Iron Go. v. Hooper, 7 
 
 necessary to the ordinary business of a Cuah. 183 ; Heart v. State Bank, 2 Dev. Eq. 
 
 cashier or agent, such as drawing or indors- 111: Dana v. Brown, 1 J. J. Marsh. 304; 
 
 •ing bills of exchange, checks, and drafts. Steamship Dock Co. w. Heron, 62 Pa. St. 380; 
 
 These acts appertain, according to com- The People «. Crockett, 9 Cal. 112; DriscoU 
 
 mercial law and usage, to the office of a e. West Bradley, etc., Co., 59 N. Y. 96. 
 
 cashier." Nisbet, J., in Merchants' Bank v. » Brent v. Bank of Washington, 10 Pet. 
 
 Central Bank, 1 Ga. 418; Preston v. Mis- 596; German Savings Bank v. Jefferson, 10 
 
 soud, etc.. Lead Co., 51 iMo. 45. Bush, 326; Leggett v. Bank of Sing Sing, 34 
 
 2 City of Davenport v. Peoria Ins. Co., 17 N. Y. 283; Arnold v. Suffolk Bank, 27 Barb. 
 Iowa, 276. 424; McDowell v. Bank, 1 Harr. (Del.) 27; 
 
 » KeKoyal British Bank, Kx parte Walton, Perpetual Ins. Co. t>. Goodfellow, 9Mo.l49; 
 
 26 L. J. (Ch.) 542. Mechanics' Bank v. Merchants' Bank, 45 Itto. 
 
 * Bargate v. Shortridgo, 6 H. L. Oas. 297. 513 ; Vansands v. Middlesex Bank, 26 Conn. 
 
 6 Chambersburg Ins. Co. ... Smith, 11 Pa, 144; DriscoU «. West Bradley, etc., R. Co., 69 
 
 St. 120; Oram «. Bangor House Proprietary, N. Y. 96; Child v. Hudson Bay Co., 2 P. 
 
 12 Me. 3,54; Keyser v. School District, 35 N. Wms. 207. , 
 
 IT. 483. 
 
^OKPOEATIONS. 247 
 
 Lien on Stock. 
 
 banks organized under the act of 1864, which institutions, being expressly 
 denied the power of loaning money to stockholders on the security of their 
 stock, cannot in consequence be clothed with a right so inconsistent.^ To what 
 extent a usage may take the place of a by-law, or a distinct and ofScial regu- 
 lation in creating such a lien, was considered in an early Pennsylvania case, and 
 a decision an'ived at giving to a usage an effect certainly as great as necessary. 
 The case was an action by Morgan and Smith, the assignees of one Wain, against 
 the Bank of North America, for refusing to permit his stock to be transferred to 
 them. The bank answered that it held the shares as a set-off against a debt of 
 Wain's due to it. It appeared that there was no by-law or written regulation 
 of the bank concerning the transfer of stock and giving a lien, but it was given 
 in evidence that It was the unvaried course of dealing there, always insisted on, 
 that no stockholder should transfer his stock while in debt to the bank ; that the 
 debt should be paid before the bank would suffer a transfer ; and this usage was 
 well known to Wain. The court, while admitting that a party entitled to a 
 transfer of stock might maintain an action against those whose duty it was to 
 make the transfer,'' ruled that the custom was nevertheless a bar. "A course of 
 dealing," it said, " a usage, an understanding, a contract, express or implied, is 
 a, lien of the parties and a law to them, provided they are not repugnant to the 
 charter or the laws of the land. This is contrary to neither. If the restrictive 
 clause had been inserted in the act of incorporation, as it is in the charters of the 
 Philadelphia Bank, Farmers and Mechanics' Bank, and Union Bank of George- 
 town, then, according to the decision of the Supreme Court of the United States 
 in nhion Bank v. Laird, ' no person could acquire a real right to any share 
 except under a legal transfer according to the rules of the bank under the act of 
 incorporation, of which he is bound to take notice.' The understood notice to 
 Mr. Wain, and his continuing to deal with the bank with full knowledge of this 
 term and condition, is equally binding on him and the present plaintiffs as if it 
 were a written regulation, a by-law, a provision in the charter, or clause inserted 
 In the very certificate of stock. The bank had an undoubted right to say to any 
 stockholder, ' We discount your note, but remember, until it is paid we shall 
 hold your stock in security ; you shall not be permitted to transfer it until you 
 pay us.' There is nothing unfair in this. The terms are known, and are 
 accepted as between the parties to the present agreement — the stockholder and 
 the bank. This amounts to an hypothecation — a pledge of stock. How it would 
 have been in a controversy between a bona fide purchaser for valuable consider- 
 ation and without notice, who pays his money to the stockholder on the faith 
 of the certificate, intrusted with the symbol of the property, the constructive 
 legal possession, the title-deed, on its face an instrument transferable and 
 assignable, I do not give any opinion. It is a very different question. But, as 
 between these parties, call this answer of the bank what you please, — set-oft, 
 legal or equitable, pledge, retainer, stoppage, course of dealing, general under- 
 standing, usage, contract, express or implied, — it is a bar in law and equity to 
 
 1 RoBenback v. Salt Springs National Bank, ropolitan Bank, 2 Biss. 527 ; Lockwood v. Me- 
 63 Barb. 495 ; First National Bank v. Lanier, chanics' National Bank, 9 R. I. 308. 
 11 Wall. 369; Bullard v. National Bank, 18 = The King v. Bank of England, Doug. 
 
 Wall. 589; Evansville National Bank o. Met- 326; Union Bank v. Laird, 2 Wheat. 390; 
 
 Winsmore v. Greenbank, Willes, 581. 
 
248 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Insurance. 
 
 this action." Mr. Pboffatt, in his valuable notes to this case in the American 
 Decisions,' says that the point decided in Morgan v. Bank of North America has 
 not been passed upon in any subsequent decision, but the soundness of the 
 doctrine is not disputed. 
 
 § 107. Transfer ol Stock — Notice. — Proof of usage to transfer certlflcates 
 of stock by a blank indorsement, -which may be filled up by the holder by writing 
 an assignment and a power of attorney over the signature indorsed, is admis- 
 sible ; 2 and notices to stockholders published in newspapers, instead of given 
 personally, are good by virtue of usage. ^ 
 
 IV. INSUKANCB. 
 
 § 108. Usages in ttie Law of Insurance. — It was said by Mr. Justice Buller, 
 in an early case, that, "in policies of insurance in particular, a great latitude of 
 construction as to usage has been admitted. By usage, places come within the 
 policy which are not expressed in words. Usage not only explains, but even 
 controls the policy." * Mr. May ° objects to this statement, so far as it implies 
 that contracts of insurance are subject to different rules of construction to those 
 applicable to other contracts ; but while his position is undoubtedly the correct 
 one, it is nevertheless true that some modern courts have followed the opinion 
 of Mr. Justice Bullkr, and have in many cases treated the contract of insurance 
 as one particularly to be considered and construed by the usages and customs of 
 the mercantile world. Thus, in the leading case of Walsh v. Horner,^ it is said: 
 " The construction of contracts of insurance is peculiarly influenced by usage. '> 
 In a recent case in Maryland, where an attempt was made for the first time to 
 render liable for general average on a cargo damaged in endeavoring to extm- 
 guish a fire on a b.oat, certain companies which had issued fire-policies on the 
 boat alone, the Court of Appeals said : " Now, it is well known that fire-policies 
 have been in existence for centuries, and cases like the present, where the vessel 
 has been insured by such policies, and the cargo insured under marine policies, 
 must have frequently occurred; and yet no case has been found in which it has 
 been held that the fire-policy must contribute to the loss sustained by the cargo. 
 Not only this, but the proof in the record shows that the usage and laws recog- 
 nized by mercantile men, and by which such policies are construed, are all 
 against this contention. In determining for the first time a question arising 
 upon insurance, such usage .and laws are entitled to weight, not only because 
 they are approved and sanctioned by practical and sagacious men in regard to a 
 subject-matter in which they are alike interested, but also because the parties 
 must be presumed to have contracted with reference to them. The whole law of 
 insurance, it has been said, has done little else than to adapt such laws and 
 usages, and to give to them the force of authority." ' 
 Mr. Arnould, in his work on Marine Insurance," notices this tendency of the 
 
 ' 11 Am. Dec. 582. 6 May on Ins., § 173. 
 
 » Kovti-ight V. Buffalo Oommeroial Bank, • 10 Mo. 6, ante, p. 160. 
 
 20 Weiia. 91. And see a. c. 20 Wend. 91; ' Merchants', etc., Tranep. Co. v. Asso. 
 
 Oommeioial Bank ... Koitright, 22 Wend. m. ciatcd Firemen's Ins. Co., U Cent. L. J. S28. 
 
 " Hall V. United States Ins. Co., 5 Gill, 434. 8 Chap. 3. 
 
 < Long ». Allen, Park. 390. 
 
INSURANCE. 249 
 
 Usages of Underwriters. 
 
 courts: "A notion," he says, "appears at one time to have prevailed that 
 policies of insurance formed an exception to the rules of construction generally 
 applicable to all mercantile contracts, and were to be construed solely with the 
 view of carrying out the intention of the parties, irrespective of the terms in 
 which they had expressed their Intentions on the face of their contract. This 
 notion most probably arose from the extreme ambiguity of the terms employed 
 in the common forms of policy, which required a constant reference to usage in 
 order to explain them. Where so many clauses were doubtful, it seems to have 
 been considered that none could be clear ; and a rule of construction only appli- 
 cable to those portions of the policy which would be intelligible without refer- 
 ence to usage was extended to those the meaning of which was too clear to 
 admit of a doubt. It was also hardly sufficiently borne in mind that the rules 
 of construction which might be fairly applied to the common printed clauses of 
 the policy, which were not the immediate terms selected by the parties them- 
 selves for the expression of their meaning, were less appropriate for the inter- 
 pretation of those written clauses and stipulations in which the parties may 
 reasonably be considered to have employed the language best adapted for the 
 explanation of the objects they had in view. The notion thus alluded to is now 
 regarded as erroneous ; and the true rule of construction is, that if the clauses 
 of the policy are in themselves clear and unambiguous, the courts cannot admit 
 parol evidence to contradict, to vary, or to explain them. If, on the contrary, 
 they are obscure and ambiguous, the courts may resort to any means of explain- 
 ing them, which may bo supplied either by the rules of the common law, the 
 general usages of trade, or the particular circumstances of the case." And 
 though these expressions are frequent in the reports, they will be found, on 
 examination, to have arisen from succeeding judges having copied the language 
 of their predecessors without having examined their reasons. The criticisms of 
 the text-writers upon these dicta are right. There is nothing in the contract of 
 insurance to call for different rules than those applied to the construction of 
 other contracts. The correct rule is to be found stated in several cases, both 
 old and recent. In a New York decision it is thus summed up by SandforD, J. ; 
 " In fine, we believe that the rule of construction applicable to policies of insur- 
 ance does not differ from that applied to other mercantile instruments. Its 
 sense and meaning are to be ascertained from the terms of the policy, taken in 
 their plain and ordinary signification, unless such terms have, by the known 
 usage of trade in respect to the subject-matter, acquired a meaning distinct from 
 the popular sense of the same terms, or unless the instrument itself, taken 
 together, shows that they were understood in some peculiar manner, and that 
 while we may not enlarge or restrict the clear and explicit language of the con- 
 tract by proof of a custom or usage, yet in the application of the contract to its 
 subject-matter, in bringing it to bear upon any particular object, the customs 
 and usages of trade are admissible to ascertain what subjects were within and 
 what were excluded from its operation. Such evidence is proper, on the same 
 principle that proof of the meaning of technical words, and words of science 
 and the arts, is permitted in arriving at the intention of the parties in the con- 
 struction of contracts." i In Bobertson v. French,'^ decided in 1803, Lord Bllen- 
 
 1 Hone V. Mutual Safety Ins. Co., 1 Sandf. 2 4 East, 135. 
 
 137. 
 
250 IN DIFFEKBNT EELATIONS AND OCCUPATIONS. 
 
 Marine Insurance. 
 
 BOROUGH said: "In the course of the argument, It seems to have been assumed 
 that some peculiar rules of construction apply to the terms of a policy of 
 assurance which are not equally applicable to the terras of other instruments, 
 and in all other cases ; it is, therefore, proper to state upon this head that the 
 same rule of construction which applies to all other instruments applies equally 
 to this instrument of a policy of assurance, viz. : that it is to be construed 
 according to its sense and meaning, as collected in the first place from the terms 
 used in it, which terms are themselves to be understood in their plain, ordinary, 
 and popular sense, unless they have generally, in respect to the subject-matter, — 
 as, by the known usage of trade, or the like, — acquired a peculiar sense, distinct 
 from the popular sense of the same words, or unless the context evidently 
 points out that they must in the particular instance, and in order to effectuate 
 the immediate intention of the parties, be understood in some special and 
 peculiar sense." 
 
 § 109. Mr. Amould's Pour Bxdes. — Mr. Arnould • gives four jmles as to the 
 admissibility of evidence of custom and usage in the interpretation of marine 
 policies, which later authors « have approved as being equally applicable to all 
 other kinds of insurance. They are : — 
 
 1 . Every usage of a particular trade which is so well settled or so generally 
 knovra that all persons engaged in that trade may be fairly considered as con- 
 tracting with reference to it, is considered to form part of every policy designed 
 to protect risks in such trade, unless the express terms of the policy decisively 
 repel the inference. 
 
 2. The usage, in order to be binding, must be either a general usage of the 
 whole mercantile world, or a particular usage of universal notoriety in the trade 
 upon which and of the place at which the insurance is effected. The usage of 
 a particular place or of a particular class of persons cannot be binding on 
 non-residents, or on other persons, unless they are shown to have been cognizant 
 of it. 
 
 3. Where the sense of the vrords and expressions used in a policy is either 
 ambiguous or obscure on the face of the instrument, or is made so by proof of 
 extrinsic circumstances, parol evidence is admissible to explain by usage their 
 meaning in a given case. 
 
 4. A resort to parol evidence, however, is only permitted where the language 
 of the policy is either obscure or equivocal. Such evidence will never be ad- 
 mitted to set aside or control its plain and unambiguous terms. 
 
 § 110. Every general Uaaga prima lacle Part of the PoUcy — Marine 
 Insurance. — In the law of marine insurance, it may be stated as a well-established 
 rule that every usage of a particular trade which is so well settled or so generally 
 known that all persons engaged in it may be fairly considered as contracting with 
 reference to it, is considered to form part of every policy designed to protect risks 
 in such trade, unless the express terms oi the policy decisively repel the infer- 
 
 1 Arnould on Ins. 65. 8 May, Angell, and others. 
 
MARINE INSURANCE. 
 
 251 
 
 Usages Incorporated into Policies. 
 
 ence.* Every underwriter, said Lord Mansfield in an early case,' is presumed 
 to be acquainted with the praotice of the trade he insures. " The principle 
 upon which evidence of usage is received at all to explain a policy," says Mr. 
 Aenotxld,' " is that the parties to it are supposed to have contracted with ref- 
 erence to such usage. With regard to usages which are either common to all 
 trades, or perfectly well known and settled in the particular course of trade to 
 which the insurance relates, it is obviously a fair presumption ^hat the parties to 
 the policy, as mercantile men, are conversant with such usages and have con- 
 tracted with reference to them. Such usages, in fact, form part of the law- 
 merchant, and to incorporate them with the policy is merely to admit the 
 addition of known terms not inconsistent with the tenor of the instrument, 
 and well understood by the contracting parties; but with regard to usages 
 which only prevail in a given place, or amongst a particular description of per- 
 sons, the presumption is the other way, and in such cases, accordingly, it must 
 be satisfactorily shown that the party sought to be affected by the usage either 
 had or might have had cognizance of it." This principle Mr. Arnould illus- 
 trates in his Law of Marine Insurance by several cases which have been decided 
 as to the admissibility and effect of evidence of the usage at Lloyd's, and which 
 will be found below.* 
 
 1 Arnould on Ins. 65 (approved by May' 
 Angell, and others) ; Hancox v. Fishing Ins. 
 Co., 2 Sumn. 132; Union Bank v. Union Ins. 
 Co., Dadley (S. C.) , 171 ; Hartshorns v. Union 
 Ins. Co., 5 Bosw. 536; 36 N. Y. 172; Gray«. 
 Swan, 1 Har. & J. 142; Murray v. Hatch, 6 
 Mass. 477; Stanton v. Natchez Ins. Co., 
 6 How. 744 ; Black v. California Ins. 
 Co., 42 N. Y. 393; Hazard ». New England 
 M.arine Ins. Co., 8 Pet. 557; Buck v. Chesa- 
 peake Ins. Co, I Pet. 151; Fabbri v. Phoenix 
 Ins. Co., 55 N. Y. 129; Pittsburg Ins. Co. v. 
 Dravo, 2 W. N. C. 194. 
 
 2 Noble V. Kennoway, 2 Doug. 510. 
 B Arnould on Ins., § 43. 
 
 * "As the great majority of insurance 
 business in England," says Mr. Arnould (1 
 Ins., p. 73) , " is stUl carried on by the private 
 underwriters who meet at Lloyd's, it might 
 have been considered no very violent pre- 
 sumption that all parties resident in this 
 country employing brokers to effect policies 
 for them, in the common course of busi- 
 ness, should be considered to have done so 
 with reference to the usages established at 
 Lloyd's, especially where such policies have 
 been actually effected lor them at that 
 house. Such, however, has not been the 
 result of the decisions; but it has been held, 
 especially by Lord Tenterden, that although 
 clear proof may be given of a particulars 
 usage being established at Lloyd's, and even 
 though the fact may be that the policy wa 
 effected by a broker at Lloyd's, in the com- 
 mon course of business, lor a party resident 
 
 in this country, yet that such party cannot 
 be affected by the usage unless it can be 
 further shown, either that he was actually 
 cognizant of it, or from his general modes of 
 dealing, habits of life, or place of business, 
 cannot be supposed to have been ignorant 
 of it. Gabay v. Lloyd, 3 Barn. & Cress. 793; 
 Bartlett v. Pentland, 10 Barn. & Cress. 760; 
 Scott V. Irving, 1 Barn. & Adol. 605; Stewart 
 V. Aberdein, 4 Mee. & W. 211. A Liverpool 
 house, through the agency of a London 
 broker, effected a policy at Lloyd's on 
 horses • warranted free of jettison and mor- 
 tality,* from Liverpool to Jamaica. In the 
 course ol the voyage a violent storm came 
 on, during which the horses broke down the 
 partitions that separated them, and three of 
 them were kicked to death. The under- 
 writer refused to make good i his loss, on the 
 ground that on policies containing this 
 warranty it was contrary to the usage of 
 Lloyd's to pay any loss for mortality on live 
 stock occurring in the course of the voyage, 
 except where the ship was lost before ar- 
 rival. The facts of the case were stated in 
 the form of a special verdict, which set out 
 the custom at Lloyd's, as proved at the trial, 
 but did not contain any finding that the 
 plaintiff was cognizant of such usage. The 
 court, under these circumstances, held that 
 the plaintiff was not bound by the usage ; 
 it was not found to be a general usage of the 
 whole trade in the city of London, and, 
 therefore, in order to render it binding on 
 the plaintiff, it ought to have been distinctly 
 
252 
 
 IN DIFFERENT RELATIONS ANO OCCUPATIONS. 
 
 Marine Insurance. 
 
 § 111. Commencement and End of Risk. — It is a rule of law that a risk on a 
 ship, or on goods therein, commences only at the very port or place named in 
 the policy as that from which the ship is to sail, or where the goods are to be 
 loaded, and ends only when the ship has reached the port to which it is insured. 
 But, — as has been seen where the liability of the carrier for the receipt and 
 delivery of goods has been called in question,' — if a general usage can be shown 
 that the ship is to sail, or the goods be taken, or the ship land, or the goods be 
 discharged at another place than that named in the policy, the underwriter or the 
 insurer will be bound by such a usage, and will not be allowed to dispute his 
 liability, or set up a right on the ground of the conditions in the policy. Kingston 
 V. Krubbs,^ decided by the King's Bench in 1808, was an action on a policy on a ship 
 at and from Oporto to London. The ship having taken in a part of her cargo 
 within the bar of Oporto, went outside to take in the remainder, when she was 
 
 found that he was cognizant of it. Gabay v. 
 Lloyd, 3 Barn. & Cress. 793. Had the evi- 
 dence at the trial shown that the plaintiff 
 was in the habit of effecting policies at 
 Lloyd's, that, the court said, would have 
 warranted the special verdict in finding that 
 he had Icnowledge of the usage in question. 
 By the general usage of the law mercantile, 
 the insurance-broiler is considered as debtor 
 to the underwriter for tlie premiums, while 
 the underwriter is debtor to the assured for 
 the loss. Per Lord Tenterden, in Bartlett v. 
 Pentland, 10 Barn. & Cress. 780. A custom, 
 however, has long prevailed at Lloyd's, and 
 is well known to all who transact business 
 there, that the insurance-broilers settle with 
 the underwriters according to the state of 
 their accounts with them, in which accounts 
 the broker is made the debtor to the under- 
 writer for all premiums on any policies 
 effected by him with such underwriter, no 
 matter on whose account; and the under- 
 writer, in the same way, is made debtor to 
 the broker for all losses, as between the 
 underwriter and the broker. Such settle- 
 ment on account is considered as payment, 
 according to the custom at Lloyd's ; whether 
 it is also to be considered as between the 
 underwriter and the assured, depends upon 
 the question whether the assured can fairly 
 be presumed, from all the circumstances of 
 the case, to have been cognizant of the 
 usage. If he be himself resident in London, 
 or has for a considerable length of time 
 been in the habit of employing insurance- 
 brokers to effect policies for him at Lloyd's, 
 then ihe reasonable presumption is that he 
 was aware of the usage, and will be bound 
 by it. If, on the other hand, he was not 
 resident in London, and cannot bo shown to 
 have been for any length of time in the habit 
 of effecting insurances at Lloyd's, the rea- 
 
 sonable presumption will be the other way, 
 and he will not be bound by the usage. See 
 the cases of Bartlett v. Pentland, 10 Bam. & 
 Cress. 760 ; Scott v. Irving, 1 Earn. & Adol. 
 605; Stewart v. Aberdein, 4 Mee. & W. 211. 
 So strong, however, has the binding force of 
 a usage at Lloyd's been considered with 
 regai'd to all those in the habit of transact- 
 ing business there, that in one case it was 
 even admitted to prove a mode of adjust- 
 ment inconsistent with the true principles 
 of marine insurance as a contract for indem- 
 nity. Thus, where, in an open policy on 
 freight, the assured contended tbat he was 
 entitled, in case of a total loss, to recover 
 the amount of the gross freight without any 
 reduction, and to establish this right called 
 witnesses of thirty or forty years' experi- 
 ence at Lloyd's, who stated that, though 
 open policies on freight were rare, yet the 
 uniform custom of settling lotoses upon them 
 bad been to pay the assured the amount of 
 the gi-oss freight. Defendant also called 
 witnesses nearly equal in number and expe- 
 rience, who stated that they were not aware 
 of the existence of the usage, as sworn to by 
 plaintiff's witnesses. See report, p 63. Tin; 
 court admitted the evidence, although they 
 allowed tbat the practice seemed inconsist- 
 ent with the true principles of indemnity. 
 Palmer v. Blackburn, 1 Bing. 61. In this case 
 Chief Justice Dallas doubted, but Park, J., 
 and Burroughs, J., the other two members 
 of the court then present, were clear that 
 the evidence had been rightly admitted. 
 It is not stated in the case, but may be fairly 
 inferred from it, that the policy was etfecied 
 with a parly well conversant with the gen- 
 eral course of business at Lloyd's, 
 
 1 Ante, § 79. 
 
 » 1 Camp. 508. 
 
MARINE INSURANCE. 253 
 
 Deviation. 
 
 driven out to sea in a gale of wind, and captured. The defence was that the 
 underwriters had not been informed that she was to take in any part of her 
 cargo outside the bar. Several witnesses testified on the trial that it was cus- 
 tomary to do so at Oporto when, from the state of the river, they could not con- 
 veniently load inside the bar. Lord Ellenborough ruled that the underwriters 
 were bound, of themselves, to take notice of the usage, and the plaintiff had a 
 verdict. In Moxon v. AtMns,^ the policy read, " at and from the ship's loading 
 port or ports in Amelia Island to London." There was no port on that island, 
 and ships never touched there ; but the vessel in question took in her cargo at 
 Tigre Island, which lies a little farther up the river St. Mary's. The plaintiff 
 had a verdict. Lord Ellenborough saying: " The words of the policy cannot be 
 literally understood, for there is no port in Amelia Inland where the ship could 
 load. The real question is, whether there has been a loading at Amelia Island 
 within the meaning of the parties when the policy was effected. Strictly and 
 locally, there has been no loading at Amelia Island. But it is possible that in 
 mercantile contracts Amelia Island may denominate a region in which Tigre 
 Island is comprehended. Essequibo has been held for some purposes to be part 
 of Demerara, although the two settlements are quite distinct. There is the 
 more familiar instance of Westminster being considered in London, the general 
 name for the metropolis, yet we know that in strictness London only compre- 
 hends the limits of the city. The circumstance of the ship paying duties and 
 clearing at Amelia Island may go a great way to show that ships which do so are 
 conceived to have loaded there. The question here vrill be whether, upon the 
 evidence, this cargo can be said to have been loaded at Amelia Island according 
 to the usages of such voyages. If it was, the policy attached, although, literally 
 speaking, no part of the cargo had ever been upon Amelia Island." 
 
 So as to arrival and delivery. It was formerly the custom at Archangel, 
 immediately on a ship's arrival, to seal down her hatches, send a custom-house 
 officer on board till she was unloaded, and carry the goods to the government 
 warehouses, where they remained till the duty was paid. A merchant who had 
 insured his goods from London to Archangel, "until they should be there dis- 
 charged and safely landed," was held to have no right of action against the 
 underwriter for any loss that had occurred to the goods after the hatches had 
 been sealed down and the revenue officer put on board ; for, as Lord Ellen- 
 borough said, the goods were there landed according to the usual course of 
 trade at Archangel, which was all the underwriter undertook.^ Likewise, in a 
 case in the Supreme Court of the United States, where a custom was proved 
 prevailing in the port of Leghorn, that goods shipped for that port should be 
 invariably landed at the Lazaretto, it was held that one who had insured certain 
 goods "till they were safely landed at Leghorn " could not protect them by such 
 pohcy after they were once landed at the Lazaretto, such being, by the custom 
 of the trade, equivalent to a landing at Leghorn.' 
 
 § 112. Deviation. — The doctrine of deviation is one of considerable Impor- 
 tance in the law of marine insurance. Shortly stated, and as established by the 
 adjudications, it is this: That the meaning of the parties to the policy is uni- 
 
 1 3 Camp. 200. ' Gracie v. Maryland Ins. Co., 8 Cranoh, 75 
 
 2 Brown V. Carstairs, 3 Camp. 160. 
 
254 IN DIl^FEKENT BELATIONS AND OCCUPATIONS. 
 
 Marine Insurance. 
 
 versally understood to be that the ship shall proceed from one terminus of the 
 vogage insured to the other in a direct course, without touching at any inter- 
 mediate point or pursuing any intermediate adventure. Therefore, if she do 
 so, without leave for that purpose being expressly given in the policy, this, how- 
 ever trifling in extent or duration, is a deviation, although the ship may after- 
 wards return to her proper course ; and this will discharge the underwriter.' 
 But the usage of the trade may change this rule, provided it be clearly estab- 
 lished and general in its operation, and may justify a ship in quitting the direct 
 line between the port of departure and the port of destination.^ Thus, it beiifg 
 usual for ships sailing through the Sound to stop at a certain point to pay the 
 Sound dues,' and it being the usage of the trade to take in an additional cargo atthe 
 place into which a ship might be driven by stress of weather,* these stoppages 
 did not discharge the underwriters. On the same principle, in the East India 
 and Newfoundland trades, it has been ruled in many cases to be no deviation to 
 engage in intermediate voyages, because of a usage which every underwriter 
 insuring in those trades was bound to know. Such intermediate voyages were 
 understood to be included in the course of the voyages insured.* Reference is 
 also proper here to the cases which establish that a ship may visit the ports on 
 the voyage in the order which usage and custom has established,* although the 
 rule of law is that the ship must visit such ports in the geographical order of 
 their distance from the terminus or port of departure.'' A de>iation simply for 
 the purpose of saving property will discharge the insurer; « but not so if a cus- 
 tom of the river permits it.» 
 
 "Where, however," it Is said by Mr. Arnould, "the policy itself, besides 
 indicating the termini of the voyage, contains any direction as to the course 
 which the ship shall take in sailing between them, such directions must be fol- 
 lowed with the most scrupulous and literal exactness, and the slightest failure 
 to comply with them will amount to a fatal deviation." This is but another 
 instance of the oft-repeated rule that a usage will not be heard to contradict the 
 words of an express contract.'" Elliot v. Wilson " is a leading case upon this 
 point. It was usual for vessels sailing from Carron with goods or freight for 
 Hull, in going down the Frith of Forth, to touch at different places for the pur- 
 pose of taking in and delivering goods, particularly at Borrowstoness, Leith, 
 and Morrison's Haven. A merchant who was desirous of insuring goods on a 
 voyage from Carron to Hull directed his broker to effect an insurance, with 
 liberty in the policy " to call as usual " (which would have enabled the ship to 
 
 ' 3 Kent's Comm. 312; Arnould onlne. 554; v. Hunter, Park. 103; Vallanoe v Dewar 1 
 
 l°V'2^^^J^' ^^'*- ^^''' ^°«'"«°" »• Guyon, Oamp. 608; Ougier v. Jennings, 1 Camp. 503. 
 
 Park. 620; Clason v. Simmonds, 6 Term Rep. e Beatson v. Haworth, 6 Term llep. 531; 
 
 ,„ « , ™. Gairdner ». senhonse, 3 Taun. 16. 
 
 .n!t M ° /n't '»?; ^T ^°""- ^"'^ '**"■ ' Clason.v. Simmonds, 6 Term Rep. 533; 
 
 Ln T 5nv ^ „ I ^"'"n' ""• '"'■• "• ^''"'> » ^"^'^ "''; Kaao .. Colonial Ins. 
 
 ft s m w Z ■,J'r"\ '«• ?t"-'' '"'''' ^°- ' '"""''■ ^; Doblois V. Ocean Ins. Co.. 
 t^^r. ZV^ "■ "°'«<""*'«- 8 UPP«'' G»«- 16 Kok- 303; MoUish v. Andrews, 2 Man. & 
 
 ^ Cormaok v. Gladstone, 11 East, 347. » Soaramanga v. Stamp, 28 Week Rep 691 
 
 -Salvador^.Hopkms.SBurr. 1707; Greg- '» Pos< Chap V «=,p.io". 
 
 ory V. Christie, 3 Doug. 419; Parquharson " 4Bro. P. O."«0. 
 
MAKINE INSURANCE. 255 
 
 General Average. 
 
 touch at all or any of tlio three places above mentioned) . Instead of this, the 
 broker, contrary to the directions of the merchant, and without his knowledge, 
 insured the goods on the voyage from " Carron to Hull, with liberty to stop at 
 Leith." The premium was the same as usual. The ship sailed on her voyage, 
 passed by Leith without calling there, but put into Morrison's Haven. She sus- 
 tained no damage there, but was afterwards overtaken by a storm and wrecked 
 on the coast of Newfoundland. The Scotch court decreed against the under- 
 writers, but the House of Lords reversed their judgment, on the ground that 
 putting into Morrison's Haven under a policy which contained no liberty to do 
 so, but, on the contrary, gave express permission to put into another named 
 port, was a deviation discharging the underwriters from all further liability. 
 
 § 113. General Average. — The doctrine of general average may thus be 
 stated: ^'If goods are necessarily thrown overboard for the purpose of lightening 
 the ship, the loss is to be made good by the contribution of all, because it was 
 incurred for the benefit of all." The doctrine is founded in pure equity. The 
 sacrifice being made for the safety of the vessel and remaining cai'go, the owner 
 of the goods should bear no more than his just proportion of the loss thus 
 incurred. From the benefit of this right to contribution the owner of goods 
 loaded above deck was excluded, on the ground that such loading is improper, 
 tending to embarrass the movements of the crew and the working of the ship. 
 To the universal application of the rule (excluding deck cargo) serious objec- 
 tion has been made from the outset, and strenuous efforts used to limit its 
 operation. It has been urged that some goods may be placed on deck without 
 embarrassing the crew or the movements of the vessel, and especially in short 
 voyages from port to port; that custom has established the safety of such load- 
 ing, in some kinds of cargo, and in voyages between certain places ; and that 
 where such loading Is in pursuance of contract with the carrier, he cannot urge 
 the objection that it is improper. From the beginning, most, if not all elemen- 
 tary writers on the subject have stated the rule with exceptions. Valin says: 
 "The doctrine excluding goods carried on deck (and jettisoned) from general 
 average ought to be controlled by the usages of trade ; and, accordingly, contri- 
 bution may be claimed for goods thrown overboard from the decks of small 
 coasting-vessels, or river craft, which usually carry part of their cargo on 
 deck." ' The only exception which seems well supported, of an early date, is 
 one in favor of goods carried on deck in pursuance of custom. What is said in 
 the early cases and elementary works respecting goods so carried on small 
 coasting-vessels must be referred to custom, and is true only to the extent that 
 such custom is shown to exist. As the reason for exclusion is the unsafe and 
 improper loading, it might be supposed that the rule would not apply in any 
 case where it could be shown by testimony that, from the character of the cargo 
 or the voyage, the loading Is safe and proper. A careful examination of the 
 authorities, however, will show that this question of safety is referrred to the 
 judgment of the trade, as expressed in its customs, and cannot be inquired of in 
 any other way.' 
 
 1 Valin's Ord. dc la Mar , art. 13. 
 
 = Wood V. Phoenix Ins. Co., 37 Leg. Int. 148; Miller ». Tetherington, 6 Hnrl. * N. 278. 
 
256 IN DIFFERENT RELATIONS AND OCCDPATION8. 
 
 Marine Insurance. 
 
 § Hi. Extent of the Policy. — It had been settled by several cases that in 
 a policy of marine insurance effected upon certain goods on an outward voy- 
 age and their "proceeds" home, the word "proceeds" meant the same as 
 "produce," viz. : something proceeding from, or produced by something else — 
 the same amount or value of goods sold and converted into money, or goods pur- 
 chased with such money, or exchanged for the original goods.' Such a con- 
 struction was therefore inconsistent with the idea that the term should include 
 the identical goods brought home on the return voyage. When, therefore, in 
 Dow V. Whetten,'' decided by the Supreme Court of New YorJj in 1831, this pre- 
 cise question arose, the court ruled that where goods are shipped for a voyage, 
 and a policy Is effected upon the goods out and upon the " proceeds " thereof 
 home, the identical goods composing the outward cargo, brought home on the 
 return voyage, would not be considered as included in the word "proceeds," nor 
 covered by the policy ; and that a usage to the contrary was not material. But in 
 the Court of Errors this ruling was reversed. "If the plaintiff," said Chancel- 
 lor Walworth, " could have shown a settled usage among commercial men to 
 consider the same specific articles, when brought back upon the return voyage, 
 to be the proceeds of the outward cargo, and to be included in that term, he 
 should have been permitted to give such evidence to the jury." 
 
 § 115. Apportionment ol Premium — Adjustment. — And the general rule of 
 law that there can be no apportionment of the premium where the risk is entire, 
 may be entirely changed by an established usage to apportion the premium in 
 certain cases.^ But in Homer v. Dorr,'' where the insurance was on property 
 laden on freight from Boston to Archangel, and back to Boston, taking the risk 
 on shore as well as on board, in an action on the premium-note, it was held that 
 the whole note was recoverable, though no property was returned In the ship, 
 although it was proved to be the universal usage in Boston, where the insurance 
 was effected, to return a portion of the premium in such cases. This case was 
 subsequently followed, in Eager v. Atlas Insurance Company,' by the same 
 court, which decided that the rule of law that in adjusting a partial loss on a 
 ship which has been repaired, the proceeds of the old materials not used in the 
 repairs are first to be deducted from the gross expenses of the repairs, and then 
 the deduction of one-third new for old to be made from the balance, could not be 
 altered by a usage to make the deduction from the gross amount of the expenses 
 of repairs. "The usage," said Wilde, J., "is opposed to the essence of tlie 
 contract of insurance, which is a contract of indemnity. The usage Is also 
 opposed to the rule of law, as we understand it, by which partial losses, when 
 vessels are to be repaired, are to be adjusted." On the otlier hand, in Alabama, 
 a custom in the city of Mobile, as to the mode of adjusting damages in cases 
 of partial loss on valued policies, to pay the difference between the sales price 
 of the injured article and the price stipulated in the policy, was held valid and 
 binding on parties residing and contracting in that city. It was argued that the 
 
 > Haven «. Gray, 12 Mass. 76; Whitney now, 3 Burr. 1237. Contra, Homer v. Dorr, 
 
 American Ins. Co., 3 Cow. 210. 10 Mass 26 
 
 IVlrV- MO Mass. 26. 
 
 Eothwell ti. Cook, 1 Bos. & P. 172 ; Lewis <■ U Ptok 1« 
 
 V. Thatcher, 16 Mass. 438; Stevenson t>. 
 
MARINE INSURANCE. 257 
 
 Usages in Different Cases. 
 
 rule in such cases, to find a per centum of loss by calculation based on the true 
 value of the uninjured and of the injured goods, and to apply this to the sum 
 insured on the policy, was well settled, and the text-books and reports were 
 cited to sustain this contention.' But the court said: "The general law regu- 
 lating the assessment of damages under such policies, even if it differed from 
 this custom, must give way to it." " Yet, again, in a recent Massachusetts case,' 
 the rule of law that in estimating a loss under an open policy, the damages arc 
 to be based upon the marliet value of the goods at the inception of the risk,* it 
 was held could not be affected by a custom, which the defendant offered to prove, 
 that the invoice value, and not the market value at the time and place of ship- 
 ment, was treated as the basis of insurable value. " This being the rule of law 
 as to damage," said the court, "the custom of a particular port could not vary 
 it." 6 
 
 The commercial practice of adding the premiums to the invoice value may be 
 modified and controlled by a local usage.' 
 
 § 116. Otter Cases. — So, in a marine insurance case, evidence of usage has 
 been admitted to show when the outward-bound risk determined and the home- 
 ward-bound risk commenced; ' to show the length of time allowed to shippers 
 to discharge their cargo after the arrival of the vessel in port; * that the owner 
 of goods stored on deck should not receive any contribution, by way of general 
 average, from the ship-owner in respect of the jettison of goods so stowed ; ' that 
 the underwriters on ships should not be liable to contribute, by way of general 
 average, in respect to such goods ; "• that the destruction of rigging, while stored 
 on the banks of the Canton Biver, was within the policy covering a " voyage ;" " 
 that a policy of insurance on East India ships Includes the chance of their being 
 detained in India, and the risk of what is known as the country trade there ; i'' 
 that a policy from Loudon to Madras and China, with liberty to touch, stay, and 
 trade at any ports, etc., until the vessel shall arrive at her last loading-place in 
 the East Indies or China, covers an intermediate voyage from Madras to Bengal, 
 the vessel arriving at Madras too late to proceed that season to China; •' that 
 ships engaged in the Newfoundland trade, after their arrival at Newfoundland, 
 make intermediate voyages from one American port to another before beginning 
 to load a cargo on the homeward voyage." And a party may exempt himself 
 from the consequences of the general law that the insured must provide a pilot, i' 
 
 'lAmould on Ins. 970,974; 2 Id. 310; ' Camden ». Cowley, 1 W. Black. 417. 
 
 Katchez Ins. Co. v. Bnckner, 4 How. 63. " Noble v. Kennoway, 2 Doug. 511. 
 
 2 Fnlton Ins. Co. v. Milner, 23 Ala. 420. • Milward v. Hibbert, 3 Q. B. 120. 
 
 8 WarrenD.FranklinIns.Co.,104Ma88.518. '° Ibid. 
 
 < Ooffln V. Newburyport Ins. Co., 9 Mass. " Pelly v. Boyal Ex. Assur., 1 Burr. 341. 
 
 436; Le Roy v. United States Ins. Co., 7 12 Salvador ». Hopkins, 3 Burr. 1707. 
 
 Johns. 343; Carson ■». Marine Ins. Co., 2 >3 Gregory o. Christie, 3 Doug. 419. 
 
 Wash. C. Ct. 468; Cox v. Charleston, etc., '* Vallanoe v. Dewar, 1 Camp. 405; Ougier 
 
 Ins. Co., 3 Eioh. L. 331. w. Jennings, 1 Camp. 503, note. 
 
 6 And see as to usage and the settlement " Hollingworth v. Broderiok, 7 Ad. & E. 
 
 of average losses, Sanderson v. Columbian 44 ; Law v. Hollingsworth, 7 Term Rep. 160 ; 
 
 Ins. Co., 2 Cranoh O.Ct.218; Stnrgis u. Gary, Phillips o. Headlam, 2 Barn. &, Adol. 380; 
 
 2 Curtis, 382. Sadler v. Dixon, 8 Mee. & W. 90O. 
 
 « Merchants' Mutual Ins. Co. v. Wilson, 2 
 Md.217. 
 
\ 
 
 258 IN DIFPEKENT RELATIONS AND OCCUPATIONS. 
 
 Fire Insurance. 
 
 by showing that by the usage of the port he was exempted from providing one.* 
 And although, in the law of marine insurance, a concealment of papers amounts 
 to a breach of warranty, it was held in an early case in the Supreme Court of the 
 United States, that "when the underwriters know, or by the usage and course 
 of the trade insured ought to know, that certain papers ought to be on board for 
 the purpose of protection in one event, which in another might endanger the 
 property, they tacitly consent that the papers shall be so used as to protect the 
 property." ^ So, evidence of usage is competent where the question is whether 
 the risk has been increased by taking on board a deck-load of cotton.' 
 
 § 117. Every general TTsage prima facie part ol the Policy — Fire Insur* 
 ance. — What has been said in the former section as to the effect of usage on 
 contracts of marine insurance is equally applicable to contracts of fire insurance 
 The parties are presumed to make their agreements in accordance with the cus- 
 toms of their business.* And the general rule that one engaged in a particular 
 business is presumed to contract with reference to the well-known usages of 
 that particular business, may, perhaps, be extended beyond this statement, for 
 it must include the incidents of that business. Thus, a fire-insurance company, 
 for example, insuring a manufacturing establishment must be presumed to be 
 familiar with the use of terms employed in that trade.* 
 
 § 118. Customary Incidents ol the Business insured. — The leading case of 
 Harper v. City Insurance Company^ lays down this general rtile, which 
 numerous authorities support, viz. ; That where a certain trade, or business, or 
 occupation is Insured, the insurer is to be taken as consenting and agreeing that 
 all its customary incidents shall be allowed, though the policy does not in express 
 words permit it, and may even by implication forbid it. In Harper's case, the 
 insurance being upon a priuting and book-binding establishment, and the use of 
 camphene being necessary and customary for the conduct of the business, the 
 insurer was held liable for a loss caused by the ignition of camphene, and this 
 although there was a condition in the policy exempting the insurer from any 
 loss occasioned by camphene. By insuring the plaintiff's stock with the privilege 
 of a printing-office and a book-bindery, it was well said by the court, the use of 
 such materials, including camphene, as were necessary in that business was 
 allowed; otherwise the contract was a mere delusion.' FoUovring the principle 
 of this case, where a policy on a fair-building insured property therein " belong- 
 ing to exhibitors," it was held that the use of fire and steam to exhibit 
 machinery, and the keeping of a restaurant, and a kitchen with ovens therein, 
 did not defeat the Insurance, and that the keeping of articles to be exhibited, or 
 to be used as means of the exhibition, was not a use of the building " for the 
 purpose of keeping or storing " them therein." Where a policy was issued on a 
 
 T \^\^ "■ ^''""'"""^' '="'■• '°^- ^°- * K'oJ'- ' Daniels ». Hudson Eiver, etc., Ins. Co., 
 
 ■ - ■ • ^'^ Casii. 416; Sims v. State Ins. Co., 47 Mo. 
 
 Liyingston«>.MarylandIns.Co.,7Cranoh, 54; Mav v. Buckeye Ins. Go 25 Wis 291 
 
 ^: ^ , « Ante, p. 148. 
 
 Lapham „. Atlas Ins. Co , 24 Pick. 1. 7 see also Harper v. Albany Mutual Ins. 
 
 Home Ins. Co. v. Favorite, 46 HI. 26S; Co., 17 N. Y. 194 
 
 Slandiu-d Oil 00. v. Triumph Ins. Co., 3 Cent. s Mayor 'v. Hamilton Fire Ins. Co.. 10 
 
 "' BoBW. 637 ; New York o. Exchange Ins. Co., 
 
 9 Bosw. 424. 
 
FIRE INSURANCE. 259 
 
 Incidents of Business Insured. 
 
 building occupied as a manufactory of hat-bodies, and the conditions, among 
 occupations denominated "extra-hazardous," included " carpenters In their own 
 shops, or in buildings erecting or repairing," the use of a room in the building 
 as a shop for the purpose of repairing the machinery necessary for the business 
 of making hat-bodies was protected by the policy .1 Where the policy was on a 
 stock of flour, grain, and cooperage contained in a stone and brick steam flouring- 
 mill, and prohibited the building from being used for mechanical operations 
 requiring heat, the use of a kiln-drying cornmeal-mill requiring fire did not 
 avoid the policy. If such a mill was a usual appendage of the bustuess of a steam 
 flouring-mill.' Where a policy on the material of a photographer prohibited the 
 keeping of kerosene in the building, if the use of a kerosene-oil stove was 
 necessary and ordinary In the photographic business, the insured might use it, 
 without avoiding the policy.' Where a policy covers " a stock of dry goods and 
 groceries, such as are usually kept in country stores," the language gives a 
 license to keep for sale any article usually kept in country stores of that class, 
 even though it involves the keeping of many articles coming under the head of 
 " hazardous." ♦ But where a policy covers a stock of merchandise " hazardous 
 and not hazardous," no such license can be imputed, even though it be shown 
 that the keeping of " extra-hazardous goods " was usual in such stores as that 
 of the insured; ' nor where the term is restricted to a "stock of family gro- 
 ceries," even though the insurer knew that the plaintiff kept such goods, and the 
 application called for insurance " upon a stock such as is usually kept in a 
 country store." ^ 
 
 It being the custom of the grocery trade to keep oil and spirituous liquors in 
 their stores for the purpose of ordinary retailing, this is not a " storing" within 
 a policy of insurance on a grocery store prohibiting " the storing therein of oil 
 and spirituous liquors ; " ' or, it being the custom of the dry-goods trade to keep 
 cotton in bales for sale, such a keeping is not a violation of a condition against 
 applying or using the store insured for storing articles of a hazardous character, 
 cotton in bales being denominated in another part of the policy as an "article 
 of a hazardous character." * It being usual for dealers in fancy goods and toys 
 to keep fire-works, a policy on the stock of a fancy-goods dealer, " with privilege 
 to keep fire-crackers for sale," will embrace "fire- works," even though the 
 policy provides that if the premises shall be used for keeping articles " specially 
 hazardous," it shall be of no effect; and in this class are placed "fire- works."' 
 It being usual in china-factories to keep a carpenter constantly employed in and 
 about the building making racks, shelves, etc., necessary for the proper conduct 
 of the business, this will not be considered as within a provision in a policy as 
 
 ' liOunsbtirytJ. Protection Ins. Co., 8 Conn. Merchants', etc., Ins. Co., 43 Mo. 434; Pin- 
 
 459. dar v. King's County Ins. Co., 36 N. Y. 648. 
 
 ' Washington, etc., Ins. Co. v. Mechanics', ' Pindar v. Continental Ins. Co., 38 N. Y- 
 
 etc., Ins. Co., 5 Ohio St. 450. 364. 
 
 ' Hall V. Insurance Co. of North America, " People's Ins. Co. v. Euhn, 1 Cent. L. J. 
 
 58 N. T. 292. 214; Pindar v. Resolute Ins. Co., 47 N. Y. 
 
 < Rafferty v. New Bninswiok Ins. Co., 3 114. 
 
 Harr. (N.J.) 480; Leggett v. Insurance Co., ' Langdon v. Equitable Ins. Co., 1 Hall, 
 
 10 Rich. L. 292; Niagara Fire Ins. Co. v. De 227. 
 
 Graff, 12 Mich. 124; Girard Fire Ins. Co. v. » Moore v. Protection Ins. Co., 29 Me. 97. 
 
 Steghenson, 44 Pa. St. 298; Citizens' Ins. Co. » Steinback ». Lafayette Ins. Co., 64 N. 
 
 V. McLaughlin, 64 Pa. St. 4s5; Archer «. Y. 90. 
 
260 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Fire Insurance. 
 
 to " carpenters in their own shops, or in buildings erecting or repairing." > it 
 being customary in country stores to keep a couple of kegs of gunpowder for 
 sale in small quantities, this will not avoid a policy on such a store, one of the 
 conditions of which may be that " the keeping of gunpowder for sale, or on 
 storage upon or in the premises insured, shall render the policy void." ^ 
 
 Benzine being used in the finishing of rustic window-shades, such a use in a 
 "manufacturing establishment," insured as such, will not avoid the policy, 
 though prohibited in terms therein ; " nor, being used in a wagon-maker's shop 
 and being customarily used in the manufacture of wagons, will a fire arising from 
 this fluid prevent a recovery on a policy which expressly provides that the com- 
 pany shall not be liable for damage resulting from " the use of camphene, spirit- 
 gas, or burning-fiuid." ' Benzole being commonly used in the manufacture of 
 patent leather, such a use is not a breach of a condition in a policy on a patent- 
 leather manufactory which allowed the keeping of benzole in no other place 
 than in a shed detached from the building, where the insured, in conducting 
 their business, carried it, as needed, into the factory in an open can.* In the 
 manufacture of brass clock-works, turpentine is used for cleaning the works 
 alcohol in making a mixture called lacker, and saltpetre in making a dipping, 
 and which are all employed in the business. A policy, therefore, on the stock 
 in trade of a manufacturer of brass clocks is not avoided by using and keep- 
 ing these articles on hand, although they are expressly prohibited therein.' 
 A policy on the stock of a "rope manufacturer" will permit the business of a 
 " rope-maker " in the building insured, though that trade is prohibited in another 
 part of the policy.' A policy on railroad buildings will not be avoided by the 
 customary use of a dummy-engine near the buildings, though such use increases 
 the risk.* A policy on merchandise such as is usually kept in country stores 
 is not avoided by keeping hardware, china, glass-ware, and looking-glasses, 
 without particularly describing them, though such particular description is 
 required by its terms.' A policy upon stock such as is usually kept in country 
 stores covers spirits of turpentine and gunpowder, if usually a part of the 
 stock of country stores, although these articles are in another part of the 
 policy prohibited from being kept therein." In Pindar v. King's County Insur- 
 ance Company, ^^ Grovbr, J., of the New York Court of Appeals, discussing such 
 a policy, said: "The description of the goods insured by the policy was such 
 goods as are usually kept in country stores. To determine what particular 
 
 ' Delonguemare v. Tradesmen's Ins. Co., customary to employ benzole in the mann- 
 
 2 HaU, 589. factuie of such leather, they must be pre- 
 
 ' Leggett V. Mtna. Ins. Co., 10 Rich. L. 203 ; sumed to have known the fact, and to have 
 
 Phoenixins. Oo.j,. Taylor,5 Minn. 492. But contracted with reference thereto." 
 see Macomber v. Howard Ins. Co., 7 Gray, e jtryant v. Poughkeepsie Mutual Ins. Co., 
 
 267; Beacon Life, etc., Assur. Co. ». Gibb, 1 17 N Y '00 
 Moo PC. C. (N. s.) 73. 7 Wall" v. Howard Ins. Co., U Barb. 383. 
 
 » y.ele V. Germania Ins. Co., 26 Iowa, 10. a The Commonwealth v. Hide and Leather 
 
 Archer v. Merchants', etc., Ins. Co., i:\ Ins. Co., 112 Mass. 13B. 
 
 Mo. iU. 
 
 . ^.^. . , „ ° Franklin Fire Ins. Co. v. Updegraff, 43 
 
 s Citizens' Ins. Co. v. McLaughlin, 69 Pa. Pa. St. 360. 
 
 St. 485. "They," [the company] said the " Pindar «. King's County Ins. Co., 36 N.T. 
 
 court to the Jury, "must be supposed lo 648. 
 
 know that It was carried on In the usual " 36 N. Y (J48 ' 
 and customary way ; and if It was usual and 
 
FIRE INSUItANCE. 261 
 
 Increase of Risk. 
 
 goods were covered oy the policy, it was necessary to ascertain what goods were 
 usually kept in country stores. This rendered proof of what was so kept, neces- 
 sary and competent. The objection to this evidence was therefore properly 
 oveiTuled. The evidence showed that spirits of turpentine and gunpowder 
 were usually kept in country stores. These articles were thus brought within 
 the description of the policy, and covered by it. It was wholly immaterial 
 whether, when stocks of country stores were insured, it was usual to make some 
 special agreement in relation to tnes.e articles. The inquiry was simply whether 
 they were usually kept in country stores, not how they were insured when so 
 kept, if at all. Aided by the proof given, the policy in question must be con- 
 strued as Insuring spirits of turpentine and gunpowder, together with the other 
 goods, as much as though these articles had been specifically mentioned as 
 insured in the policy. In Harper v. Albany Mutual Insurance Company,^ it was 
 held that a policy upon premises privileged for a printing-office, upon its being 
 shown that the use of camphene was necessary in conducting the business, 
 implied an assent by the insurer to its being kept upon the premises for such 
 use, although the restriction to its being kept upon the premises was similar to 
 that as to spirits of turpentine and gunpowder in the present case, and that so 
 keeping and using it did not avoid the policy. In Harper v. Oity Insurance 
 Company,'' a similar rule was not only held, but a majority of the court went 
 further, and held that although the policy contained a printed clause exempting 
 the insurer from damage for loss sustained from camphene kept upon the 
 premises for use, yet that this exemption did not apply to a loss from Are caused 
 by igniting camphene so kept, accidentally, by a lighted match. It is not necessary 
 to go to any such extent in the present case . We have seen that in the present case 
 the policy, properly construed, covered gunpowder and spirits of turpentine ; and 
 when these articles are insured, a printed clause prohibiting their being kept is 
 tplamly repugnant to the written clause insuring them ; and, by the authority of 
 the cases above cited, the printed clause must be governed by the written. The 
 policy was, therefore, not void at the time of the Are by reason of keeping the 
 spirits of turpentine and gunpowder. It cannot be held that the effect of the 
 printed clause in the present case is to except spirits of turpentine and gun- 
 powder from the general description of the property Insured, without overruling 
 Harper v. Albany Insurance Company and Harper v. City Insurance Company.^ 
 The insurer is presumed to have known what articles were usually kept in 
 country stores, and, consequently, that the policy covered the powder and 
 turpentine." 
 
 A policy insuring all the articles constituting the stock of a pork-house, and 
 all articles contained within the building described, and appurtenant thereto, 
 covers — such being the usage of the pork-packing business — -all the property 
 within the building, without regard to the particular ownership, or any part of it 
 intended to be insured.* 
 
 § 119. Increase ot Risk. — In determining whether or not there has been an 
 increase of risk, it is necessary to ascertain what the parties must be presumed 
 
 ' 17 N. y. IfM. ■" ^tna Ins. Co. v. Jackson, 16 B. Mou. iti ; 
 
 2 22 N. y. 441 , ante, p. Vfl. Jackson v. Minn, Ins. Co., 10 B. Mon. 242, 
 
 5 IMd. 
 
262 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Fire Insurance. 
 
 to have contemplated when the insurance was made, and this involves a con- 
 sideration of the usages and incidents of the risk; because, if the change was 
 one warranted by the usages or usual incidents of the risk, although it in^ fact 
 increased the risk, it does not come within the prohibition, because it is pre- 
 sumed to have been contemplated by the parties. This rule is in these words 
 well and succinctly stated by Mr. Wood: ' " Generally, it may be said that any 
 alteration or change in the risk made subsequent to the insurance, and which 
 has the effect of materially increasing the risk, will avoid the policy." '^ But a 
 policy on a dwelling-house, unoccupied when the policy was issued, would not be 
 invalidated by its subsequent occupancy and setting up therein stoves and other 
 appliances usually employed to heat the building, nor by using light, unless 
 expressly prohibited by the policy, because those acts are customary in the use 
 oi a dwelling-house.' So of ordinary repairs to a building.* A study of a few 
 leading cases will make clear the extent of usage in qualifying the general rule 
 as to alterations in fire insurance. In Dobson v. Sotheby,' which came before 
 Lord Tenterden, C. J., in 1827, the policy insured buildings " in which no Are 
 is kept, and no hazardous goods are deposited." The buildings requiring tarring, 
 a fire was lighted therein, and a tar-barrel brought into the building, and in the 
 absence of the plaintiff's servants, and by his negligence, the tar boiled over, 
 took fire, and destroyed the premises. It was contended for the insurer that 
 the plaintiff could not recover, " because the lighting a fire within the building 
 was a contravention of the terms of the policy, which required that no fire 
 should be kept in the buildings ; and that the tar-barrel came under the descrip- 
 tion of hazardous goods, and, therefore, that bringing it within the premises 
 was a breach of the policy." But Lord Tentehden, C. J., ordered judgment 
 for the amount of the policy, saying: "Nor do I think that the circumstances 
 relied on furnish any answer to the action." If the company intended to stipu- 
 late not merely that no fire should habitually be kept on the premises, but that* 
 none should ever be introduced upon them, they might have expressed them- 
 selves to that effect; and the same remark applies to the case of hazardous 
 goods also. In the absence of any such stipulation, I think that the condition 
 must be understood as forbidding only the habitual use of Are or the ordinary 
 deposit of hazardous goods, not their occasional introduction, as in this case, 
 for a temporary purpose connected with the occupation of the premises. The 
 common repairs of a building necessarily require the introduction of fire upon 
 the premises, and one of the great objects of insuring is security against the 
 negligence of servants and workmen." In Billings v. Tolland County Mutual 
 Fire Insurance Company,^ the policy insured two barns, and contained the fol- 
 
 ' Wood on Ins., §338. Go., 32 Mil. 103; Bann „. Home Ins. Co., 59 
 
 2 Wood on Ins., §236; Jones w. Firemen's N. Y. 387; I'adelfoi-d v. Pravidcnce, etc., 
 
 Fund Ins. Co., 51 N. Y. 318; Jones v. Manu- Ins. Co., 3 U. I. 102; Sanfoi-d v. Jleohanios', 
 
 factuvei-s' Ins. Co., 8 Cush. 82; Clark v. etc.Ins. Co., 13 Cusli. 541 ; Hotclikiss !■. Ger- 
 
 Manufaotuvers' Ins. Co., 2 Woodb. & M. 472; mania Ins. Co., 5 Hun, 90; Grant v. Howard 
 
 Allen V. Insmance Co,, 2 Md. Ill ; Billings Ins. Co., 5 HIU, 10; O'Niel v. Buffalo Ins. Co., 
 
 -«. Tolland, etc., Ins.Co.,20Conn. 13'.); Jcffei-- 3 N. Y. 123; Townsoud v. Noi-tli-VVostern 
 
 son Ins. Co. tJ.Colheal, 7 Wend. 72; Williams Ins. Co., 18 Jf. Y. 168; Jolly v. Ballimurc 
 
 <;. People's Ins. Co., 57 N. Y. 274. Kiiuitable Soc, 1 Har. & G. 295. 
 
 " Wood on Ins., § 238. i 1 Mno. & M. 90. 
 
 ■< Franklin I'iiu Ins. Oo. v. Chicago Ice » 20 Conn. 1.39. 
 
FIKE INSURANCE. 2(53 
 
 Changes in Premises. 
 
 lowing clause : "All the above described barns are used for hay, straw, grain 
 Tinthreshed, stabling, and shelter, including the one used in part as a barn and 
 in part as a cider and threshing mill." On the day preceding the night of the 
 :flre, the plaintiff had caused some bushels of lime to be placed in the barn, to be 
 used for rolling it in wheat which he was about to sow. He had also some time 
 previous commenced painting his house, and in the barn, at the time of the fire, 
 had been left a quantity of oil, lead, and mixed paint. The jury having found a 
 verdict for the plaintiff, a new trial was refused by the Supreme Court of Errors 
 of Connecticut. "The acts done by the plaintiff," said Waite, J., "are set 
 forth in the motion, so that we can see what they were, and whether they were a\ 
 departure from the common and ordinary use of such buildings. We very well 
 know that farmers In this State are in the habit of using their barns for a 
 variety of purposes connected with their agricultural business besides that of 
 storing their hay and stabling their cattle. Their barns are frequently used as a 
 shelter for their wagons, ploughs, sleds, and other farming-implements. When 
 the plaintiff caused an insurance to be effected on the buildings upon his farm, 
 it is not to be presumed that he meant to deprive himself of their common and 
 ordinary use, or that the defendants by their policy intended any such thing. 
 And, excepting so far as there is an express prohibition in relation to the use of 
 them, — as, in the keeping of ashes, — the understanding of the parties unquestion- 
 ably was that the common and ordinary use of them was to be continued, in the 
 same manner as if the policy had never been executed. * * * The plaintiff 
 prepared and left in it the steep for his seed-wheat, and stored in it the paints 
 which he was using for painting his house. We discover nothing in these acts 
 more than what is usual and common among farmers." In Washington Fire 
 Insurance Company v. Davison,'^ the policy covered a " two-story brick building 
 used as a sulphuric-acid factory." The policy contained a stipulation that any 
 alteration or change in the risk, increasing the hazard, should invalidate the 
 insurance. The assured subsequently erected a shed between the two buildings, 
 for the purpose of protecting the machinery and apparatus employed in the 
 building for the purposes specified. The insurer defended against a loss upon 
 the ground that the shed increased the risk, and was a breach of the conditions. 
 But the Court of Appeals of Maryland held that even though the risk was 
 thereby increased, yet if the erection of the shed was necessary and usual tor 
 the protection of the machinery and apparatus, it would not affect the liability 
 of the insurer. 
 
 § 120. Changes In adjoining Premises. — It is settled that, unless specially 
 provided for in the policy, the assured is not bound to inform the insurer of any 
 changes in adjoining premises, however much the rislc may be thereby enhanced. 
 By not making this a condition of the policy, the insurer accepts all the risk 
 incident to such changes.^ So, in Stebbins v. Globe Insurance Company,' where 
 the policy contained no such condition, and evidence was offered, and rejected by 
 the trial court, that by a usage at New York (the contract being made in New 
 York, but the property being situated in Mobile), upon the occurring of any 
 
 '30Md. 91. o. Madison County Ins. Co., 5 N. Y. 469; 
 
 2 Wood on Ins., § 117 ; Miller v. Western Stebbins v. Globe Ins. Co., 2 Hall, 63-2. 
 
 farmers', etc., Ins. Co., 1 Handy, 209 ; Gates » 2 Hall, 632. 
 
2(i4 IN DIFFERENT RELATIONS AND OCCUi-ATIONS. 
 
 Fire Insi ranee. 
 
 circumstance whereby the risk was increased by the act of the assured after the 
 effecting of the insurance, notice thereof was to be given to the insurers, so that 
 they might have the option of continuing the policy or annulling it, on appeal the 
 ruling was affirmed. The decision of the higher court did not rest altogether 
 upon its being a usage local to New York, but upon the ground that " if it were 
 a general usage, it could not be given in evidence to alter the legal operation and 
 effect of the policy." 
 
 § 121. Amount of Loss. — Where there is no direct evidence as to the amount 
 of loss which has been sustained in a particular case, evidence may be given of the 
 amount of stock which, by the general course of the same trade, the plaintiff would 
 be likely to have had on hand at the time of the fire. Thus, in a suit on a policy 
 of insurance on a stock of groceries in a retail store, the plaintiffs testified that 
 their sales during the year preceding the fire were abo'ut $120,000, and that the 
 goods in the store on the day of the loss were worth at their cost value $65,000. 
 It was held in the Supreme Court of the United States that the testimony of wit- 
 nesses living in the same town and engaged in the same business was competent 
 to show that grocery merchants in that town, for the six years prior to the Are, 
 had not had on hand at any one time more than one-fifth of their annual aggre- 
 gate sales; that this was the case on the day the fire occurred, and that there- 
 fore, by the general course of trade in that branch of business in the town, the 
 plaintiff's loss could not have exceeded $24,000.' 
 
 §122. Payment ol Losses — Mutual Companies. — Where a fire-insurance 
 company agreed in its policy that their directors should " settle and pay to the 
 assured all losses within three months after notice shall have been given as 
 aforesaid, and that the payment of the loss ascertained should be made within 
 the time prescribed by the charter, without deduction from the sum decreed by 
 the adjustment," proof of a usage on the part of the company, in case of a total 
 loss, to retain of the amount of the ascertained loss two per cent per month on 
 the balance of the premium-note, from the date of the last assessment upon it 
 until the expiration of the term of the policy, was rejected. "Tlie object and 
 effect of the proof offered of the usage in this case," said Woods, J., " were 
 plainly to vary and limit the plain and unequivocal terras of the policy, and to 
 control and limit their construction and legal effect. To give the evidence of 
 the nsage the effect claimed for it, would be to allow the exact converse of the 
 true and well-settled rule of law upon this subject to prevail. It would be to 
 hold that while the contract, in express and unmistakable terms, provides that 
 the whole loss shall be ascertained and paid to the assured, the usage shall cou- 
 trol the express terms, and give them the effect of a contract for the payment of 
 a sjjm less than the whole loss sustained. It would be to allow the usage to 
 control an express written contract, and to limit its terms and effect; while it is 
 well settled, in accordance with sound reason, too, that a usage shall be regarded 
 as waived by the express terms of a contract, when they are in conflict with each 
 other." 2 Although a mutual company may have been in the habit of surrender- 
 ing the notes of its members and cancelling their policies upon the happening 
 
 ■ Ineuranoo Co. v. WeiiXe, 11 Wall. 438. 2 Swamscot Mucbinc Co. .,. Partridge, 35 
 
 N. II. 3B9. 
 
LIFE INSURANCE. 265 
 
 Payment of Premiums. 
 
 and payment of losses, such a practice cannot avail to contradict' or vary the 
 written terms of a policy or premium-note.' 
 
 § 123. Eelnsurance. — Reinsurance is a contract of Indemnity to the reassured, 
 and binds the reassurer to pay to the reassured the whole loss 'sustained in 
 respect of the subject insured, to the extent to which he is reinsurer.^ There- 
 fore, it has been held not competent to limit a contract of reinsurance by proof 
 of a usage in the city of New Yorli by which the reassurer paid the same propor- 
 tion of the entire loss sustained by the original insured, that the sum reinsured 
 bore to the first insurance written by the reinsured; that is to say, that if A. 
 write a policy for $20,000, and then procure B. to reinsure him for $10,000 on 
 the same property, in the event of a loss occurring to the amount of $10,000, B. 
 would be liable to pay to A. only $5,000, instead of the $10,000 written in the 
 policy.' "The word 'reinsure,' " said Sandfokd, J., "has a definite meaning, 
 settled in the law for two centuries past, and having the same meaning in its 
 ordinary and popular sense. It is equally effective with the word 'insure;' 
 and it has been decided that the word ' insure ' may be used in a policy of reinsur- 
 ance with the same force and validity. The proof offered attempts to wrest the 
 term ' reinsure ' from the established sense, and make it correlative as between 
 the first insurer and the reinsurer wherever the former insures more than the 
 latter, with the distinct and different contract of double insurance. In our view, 
 it seeks to vary an express agreement between these parties, couched in plain 
 language, having an established legal as well as conventional meaning, and we 
 are entirely clear that the testimony of usage ought not to be received." So, in 
 an English life-insurance case, amajorityof the judges of the Queen's Bench were 
 averse to allowing the introduction of a custom, in case of reinsurance, to con- 
 fine the declaration as to health to the state of the health at the time of the 
 original insurance.* 
 
 § 124. Lite Insurance — Payment ol Premiums — Policy. — In Baxter v. 
 Massasoit Insurance Company,^ it was held to be competent to prove a usage that 
 where there has been a verbal agreement for insurance, and the terms agreed 
 upon and entered on the books of the company, the contract of insurance is con- 
 sidered as valid for the insured, although the premium is not paid. Can a usage 
 on the part of life-insurance companies to allow thirty days grace for non- 
 payment of premiums due, where by its terms the policy is to be forfeited if the 
 premiums are not paid on the very day mentioned — can a usage of this character 
 be admitted in evidence to save i forfeiture by the terms of the policy? In 
 Georgia, it has been Held that it cannot; « in Pennsylvania, that it can.' The 
 ruling in the latter case is certainly more in accord with^the rules regarding the 
 
 1 Mutual Fire Ins. Co. v. Kand, 24 N. H. 137; Mutual Safety Ins. Co. v. Hone. 2 N. V. 
 
 428. 
 
 235. 
 
 °- 2Park on Ins., §§ 595, 596 ; 2 Ph. on Ins., §§ < roster v. Mentor Life Assur. Co.. 3 EJ. & 
 
 58,749;3Kent'6Comm.279;Hastiej;.DePey- Bl. 48. 
 
 ster, 3 Caines, 190; Merry v. Prince, 2 Mass. = 13 Allen, 320. 
 
 176; New York, etc., Ins. Co. v. New York « Mutual Benefit Life Ins. Co. v. Ease, 8 
 
 Fire Ins. Co., 17 Wend. 359; New York, etc., Ga.5H4. 
 
 Ins. Co. V. Protection Ins. Co., 1 Story, 453. ' Holme v. Philadelphia Life Ins. Co., 61 
 
 3 Hone V. Mutual Safety Ins. Co., 1 Sandf. Pa. Bl- 107. 
 
2t)ti IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Life Insurance. 
 
 admissibility of evidence of custom and usage. The only reason given by the 
 Georgia court for rejecting the evidence is that there is no ambiguity in the con- 
 tract, and that " usage is provable only where there Is ambiguity in the policy." 
 It is, perhaps, sufficient to say that the case of ambiguity in the instrument is 
 only one of the many reasons lor permitting the Introduction of such evidence to 
 explain, or sometimes to change its apparent meaning, which have been recog- 
 nized by the courts. Another, and a very prominent instance in the books, is 
 where an incident to the contract is to be proved : something which the parties 
 to it did not reduce to writing, but which they understood as attaching to it in 
 accordance with the usages of the trade concerning which they contracted. 
 Now, it is obvious that in such a contract there may be on its face no ambiguity 
 whatever. Therefore, the reasons given by the Supreme Court of Pennsylvania, 
 and the rule adopted by it in the case last cited, seem valid and proper. " It 
 might have been a difficult thing," said Thompson, C. J., " to prove such a 
 custom, but that was not a good ground on which to refuse the offer. It was 
 the plaintiff's right to prove it if she could; and we are to take it, for the pur- 
 pose of this investigation, that she could have proved it. Would it have been 
 efficient proof for any purpose, had it been admitted? We think that it would, 
 although generally a contract is the law of the transaction in which it exists, and 
 is not to be affected by anything but its terms, — that is to say, it cannot be 
 abridged or enlarged in itself by anything else, — yet there are many cases in 
 which its execution is materially curtailed by usage or custom. Days of grace 
 on commercial paper are a familiar instance. By a custom grown into law 
 it is not due until the expiration of three days after it purports to be ; or, rather 
 the remedy is suspended against parties for that period. So, in agriculture, 
 although the lease may fix the duration of the term and when it is to end, ^et 
 the tenant, by custom, has rights in the premises after it is ended : to harvest 
 and carry away his share of what the custom calls the waygoing crop. This cus- 
 tom seems to do more than curtail the remedy; it in fact enlarges the contract. 
 But no custom is more perfectly established, or more thoroughly stands on a 
 solid foundation as law. There are customs which interpret marine contracts 
 to the extent of apparent changes in them. In Peake's Nisi Prius,' in the case 
 of Chaurand v. Angerstein, it was shown that, by custom, a stipulation in a policy 
 of insurance that a vessel was to sail in October meant that she was to sail be- 
 tween the 26th of the month and the 1st or 2d of November. While a custom 
 as a general rule, may not be heard to affect the terms of a statute or contract to 
 the extent of enlarging or abridging the force of it, yet it may interpret either." 
 The principle on which this case rests is approved in other cases.^ But this 
 exception could hardly be extended to cover a case where the payment was 
 made after the death of the insured.' It has been held in Illinois that where 
 the application fixed the time for the contract to take effect, a custom on the 
 part of the company that its policies should take effect on a different day was 
 
 ' Page 43. Knickerbocker Ins. Co., S Cent. L. J. 5G1; 
 
 2 Pino V. Merchants' Mutual Ins. Co., 19 La. Georgia Masonic, etc., Ins. Co. v. Whitman, 
 
 An. 2U; Howell v. linickerbockor Ins. Co., 52 Gk. l\9; Busby v. North American Ins. 
 
 44N. Y. 276; HusOK. Mutual, etc., Ins. Co., 26 Co.,40Md. 57i; Hanlcy v. Lite Assn., iilo. 
 
 Barb. 557; Buckbce «. United States Ins. Co., App. 25:i. 
 
 18 Barb. 541 ; Thompson v. St. Louis .Mutual ' SuUivuu v. Cotton States Ins. Co., 43 Ua. 
 
 Ins. Co., 62 Mo. 469. And see Thompson i: 423. 
 
LANDLORD AND TENANT. 267 
 
 Customs of the Country. 
 
 not admissible, because contradicting the application;' and evidence that an 
 agent frequently waived a condition as to payment is not admissible to raise an 
 inference of waiver in a particular case, in the absence of other proof tending 
 to establish it.' 
 
 § 125. Other Cases. — In a Scotch case, it was ruled that where the defence to 
 a life-policy was that a habit of dram-drinking was concealed in the application, 
 it was incompetent to ask whether the party was reputed a dram-drinker. The 
 proper way was to prove the number of drams he took, and then ask a medical 
 man what effect they would have.' A usage of a company to require particular 
 proof of death by the family physician of the insured cannot bind the latter, 
 unless it was known to him when he took the policy.* And it is not competent 
 to show that a person addicted to intoxicating liquor is not regarded as an 
 insurable subject by persons engaged in the business of life Insurance.* 
 
 v. Landlord and Tenant. 
 
 § 126. Customs in tbe Law of Landlord and Tenant. — In the relation of 
 landlord and tenant, the custom of the country has in England imposed upon 
 both obligations and duties which the law has recognized and enforced. In 
 farming leases, for instance, it is usual for the lessee to covenant that he will 
 manage his farm in a husband-like manner ; but it is settled that, in the absence 
 of any such covenant, the mere relation of landlord and tenant creates an 
 implied obligation to farm according to the custom of the country.' Whether 
 the cutting of any given wood is waste or not, may be determined by local 
 custom.' Every agreement between landlord and tenant in respect to matters 
 on which the writing is silent, is open to explanation by the general usage a,nd 
 custom of the county or district in which the land lies. Thus, evidence of usage 
 is admissible to show to what extent, and on what property rent is collectible.' In 
 Aughinbaugh v. Coppenheffer,^ the lease stipulated that the tenant " shall culti- 
 vate and farm said land in a workman-like manner. He shall put out all the crops 
 in good season and in proper order, of such kind of grain and in such fields as 
 the landlord shall designate. He shall also take off all crops in proper season, 
 and house the same in proper order." In an action by the tenant for work and 
 
 1 ^Vinnesheik Ins. Co. v. Holzgrafe, 53 111. ner, L. E. 7 0. P. M2; Gallasher v. Ship- 
 gig ley, 24 Md. 418; Barringtou v. Justice, i 
 
 °- Wood V. Poughkeepsie, etc., Ins. Co., 32 Clark (Pa.), 501; Willey v. Conner, 44 Vt. 68; 
 
 N. Y. 619. Smithwick v. EUison, 2 Ired. L. 326 ; Daniels 
 
 » Promoter Life Ins. Co. v. Barrie, 5 Murr. v. Pond, 21 Pick. 367; Lewis v. Lyman, 23 
 
 135 Pick. 437 ; Lassell v. Keed, 6 Greenl. 222. 
 
 < Taylor v. 2Btna Ins. Co., 13 Gray, 434. ' Taylor's L. & T., § 350 ; Honey wood v. 
 
 5 Rawls V. American, etc., Ins. Co., 27 N. Honeywood, L. E. 18 Eq. 306. 
 Y. 28' ' Mangum v. Farrington, 1 Daly, 236. A 
 
 • Powley V. Walker, 5 Term Eep. 373 ; Legh stipulation in a farming lease that the crop, 
 
 V. Hewitt, 4 East, 164 ; Angerstein v. Handson, when harvested, shall be divided according 
 
 1 Cromp. M. & E. 789; Earl of Falmouth v. to the custom prevailing among the farmers 
 
 Thomas, ICromp.&M. 89; Hallifaxs.Oham- of the neighborhood in which the land is 
 
 bers,4Mee.&W.662; Martins. Gilham, 7 Ad. situated, is valid. Clem «. Martin, 34 Ind. 
 
 & E. 540; Bickford v. Parson, 5 C. B. 920; 341. 
 Wilkins v. Wood, 17 L. J. (Q. B.) 319 ; Sutton » 55 Pa. St. 347. 
 
 V. Tennile, 12 Mee. & W. 52 ; Stafford «. Gard- 
 
2t)8 
 
 IN DIFFEKENT RELATIONS AND OCCUPATIONS. 
 
 Landlord and Teiiant. 
 
 labor, it was held proper to show that by the usual course of husbandry in the 
 vicinity, a tenant about to take possession in the next spring, or to hold over, 
 should prepare his corn-ground in the preceding fall or winter, whenever 
 possible, and that he could spread on such corn-ground all the fertilizers 
 which the landlord might furnish for that purpose, without any stipulation in 
 the lease, and without entitling him to charge the landlord therefor. 
 
 § 127. As to the "Waygoing" Crop. — At the common law, "if a tenant for 
 years, knowing the end of his term, doth sow the land, and his term endeth 
 before his crop is ripe, the lessor, or he in reversion, shall have the corn, because 
 the lessee knew the certainty of his term and when it would end." ' In the lead- 
 ing case of Wigglesworth v. Dallison,^ a custom of the country to give the tenant 
 the waygoing' crop was sustained.' A similar custom has been recognized in 
 America. The custom of the country allowing to the tenant the "waygoing 
 crop" — that is, the crop sown by the tenant during the lease, but coming to 
 maturity after its expiration — has been established in Pennsylvania. The rea- 
 sonableness of a custoin which would relieve a tenant from paying for land 
 without having the benefit of the crop prevailed upon Chief Justice McKean, 
 before the decision in Wigglesworth v. Dallison was known in this country, and 
 was recognized by the Supreme Court in almost the same words as were used by 
 Lord Mansfield in that case.* In Delaware it is established that the waygoing 
 
 = Co. Lit., § 68. V 
 
 2 1 Doug. 207, ante, p. 169. 
 
 3 Boraston v. Green, 16 East, 71; Griffiths 
 V. Puleston, IS Mee. &, W. 358; Holding v. 
 Pigott, 7 Bing. 465 ; Boavan v. Delahay, 1 H. 
 Black. 5; Caldecott v. Smytliies, 7 Car. & P. 
 108. 
 
 * Stultz ». Dickey, 5 Binn. 285. Tilghman, 
 C. J. : " When the custom of a country or 
 of a particular place is established, it may 
 enter into the body of a contract without 
 being inserted. Both parties are supposed 
 to know it and to be bound by it, unless pro- 
 vision to the contrai-y is made in the con 
 tract. It appears to me, therefore, that It 
 was proper to admit evidence of the custom 
 concerning the waygoing crop. 1 under- 
 stand that this custom had been recognized 
 by a decision a,t Nisi Prim prior to this action, 
 and that the law had been held as it is laid 
 down in the case of Wigglesworth v. Dalli- 
 son. There the custom was limited to a 
 particular part of England. With us It is 
 supposed to extend throughout the State. 
 In the nature of the thing, it is reasonable 
 that where a lease commences in the spring 
 of one year and ends in the spring of another, 
 the tenant should have the crop of winter 
 grain sown by him the autumn before the 
 lease expired, otherwise he pays for the 
 land one whole year without having the 
 beneflt of a winter crop. If the parties 
 
 intend otherwise, it is easy to control the 
 custom by an express provision in the 
 lease." Yeates, J., said the question had 
 been settled by the case of Diffedorffer v. 
 Jones, decided in 1782, and in which he was 
 of counsel. " Though 1 was dissatisfied with 
 the opinion then delivered," he adds, "I 
 have never heard the doctrine questioned 
 since. I have adverted to this case in Cavson 
 V. Blazer, 2 Binn. 487. Such custoin is said 
 in our books not to alter or contradict the 
 agreement innthe lease, but only to superadd 
 a right which is oonsequentiiil to the taking, 
 although not mentioned therein. There ciin 
 be no doubt, if the tenant was restricted by 
 the terms of his lease from removing his 
 grain alter his time was expired, that he 
 would be bound by his contract; and I 
 apprehend the privilege of the tenant, in 
 general, is confined to a reasonable quantity 
 of the lands in proportion to the residue 
 thereof, according to the course and usage 
 of husbandry in the same parts of the coun- 
 try. The privilege is founded on the highest 
 equity, and conduces to the extension of 
 agriculture." In Carson v. Blazer, 3 Binn. 
 487, ho had said: "I well recollect that on 
 the trial of Diffedorffer v. Jones, before all 
 the judges of this court at Nisi Prim, iu this 
 place, we urged on the part of the plaintiffs 
 the established common-law doctrine that 
 the landlord, alter the end of a term for 
 
LANDLORD AND TENANT. 269 
 
 Customs of the Country. 
 
 tenant is entitled, by the custom of the State, to the wheat crop ; not so, however, 
 as to the oat crop,' though it seems that an incoming tenant may enter to fill 
 his ice-house,, " necessity and custom requiring it, * * * as much as that the 
 waygoing tenant shall return to reap his wheat crop.'" Wigglesworth v.Dal- 
 lison has been followed in New Jersey,' Ohio,* and Maryland;* but not in 
 Virginia,* nor in Canada.' 
 
 §128. Other Customs. — A custom that a tenant may leave his waygoing 
 crop in the barn of the farm after he has quitted the premises, is good; « and a 
 usage for the offgolng tenant of a farm in a particular district to bestow his 
 work, labor, and expense in manuring, tilling, fallowing, and sowing, according 
 to the course of husbandry, is valid and reasonable." Where a custom tb pay 
 for fallows was proved, it was held that there was therefore an implied con- 
 tract on the part of the landlord that, if there be no incoming tenant, he will 
 pay the outgoing tenant according to the custom.'" In a very recent English 
 case (June 25, 1880), a motion was made in vacation to restrain an outgoing 
 tenant of a farm in Devonshire from selling the hay and straw off his farm. 
 It was contended that he held under a lease prohibiting the same ; or, otherwise, 
 that he held as a yearly tenant, and was prevented by the custom of the country 
 from removing the hay and straw. The tenant had been offered a lease, but had 
 refused to execute the same, and therefore the question depended on the custom 
 of the country. For the defendant, two surveyors and auctioneers of this class 
 of crops stated they knew of no such custom; but, for the plaintiff, seven farmers 
 stated it was a well-known custom where the property was not held under any 
 ■agreement. The plaintiff offered to give an undertaking in damages if the 
 injunction were granted. Pollock, J., said it was clear that if the defendant 
 held under a lease, he could not have taken the hay and straw ; but as he did 
 not hold under any agreement, the question depended on the custom of the 
 country. As to such a custom, in his experience, you could always get evidence 
 
 years ior which the lands were leased, was N agle, 2 Watts & S. 22 ; Biggs v. Brown, 2 
 
 entitled to the exclusive possession, and Serg. & R. 14; Claris t>. Harvey, 54 Pa. St 142; 
 
 that it was the folly ol the tenant to put in a Craig ». Dale, 1 Watts & S. 509; Porsythe 
 
 crop which he could not remove during the v. Price, 8 Watts, 282; Hunter v. Jones. 3 
 
 continuance of the lease. But we were told Brews. 370; Comfort •». Duncan, 1 Miles, 229. 
 
 byMcLean,C. J.,thatthetenantwasiustifled ' Templeman ». Biddle, 1 Harr. (Del.) 523. 
 
 by the custom of the country in what he had " The State v. McClay, 1 Harr. (Del.) 520. 
 
 done, and that the strict common-law rule 'Van Doren a. Everitt, 2 South. 460; 
 
 did not apply to the case. This was previous Howell ». Schenck, 24 N. J. L. 89; Society v. 
 
 to the publication of the report of Wiggles- Haight, 1 N. J. Eq. 393. 
 
 worth ti. Dallison amongst us, wherein it < Foster v. Robinson, 6 Ohio St. 90. 
 
 was held that a custom that tenants should ° Dorsey v. Eagle, 7 Gill & J. 331. 
 
 have the waygoing crop, after the expira- « Harris v. Carson, 7 Leigh, 632 ; )Vf ason v. 
 
 tion of their term, was good. I was then Moyers, 2 Rob. (Va.) 606. And see Kelley v. 
 
 dissatisfied with the decision of the court, Todd, 1 W. Va. 197. 
 
 considering it as an innovation on settled ; Burrowes v. Caines, 2 Upper Canada Q. 
 
 law. It made a strong impression on my B. 288. 
 
 mind, which was increased by the circum- » Beavan «. Delahay, 1 H. Black. 5; Lewis 
 
 stance of Judge Bryan copying the English i,. Harris, 1 H. Black. 7. 
 
 case from the book (Doug. 190, 201) , which ' Dalby v. Hirst, 3 J. B. Moo. 566 ; 1 Bred. 
 
 arrived sometime after, and, furnishing me &B. 224. 
 
 with it at the ensuing court." And see lo Faviell v. Gaskoin, 7 Exch. 273. 
 
 Demi v. Bosslei-, 1 Penn. 224; Iddings v. 
 
270 IN DIFFERENT EELATIONS AND OCCUPATIONS. 
 
 Landlord and Tenant. 
 
 on both sides ; but what pressed with him was the fact that the defendant had 
 had the benefit of the hay and straw in coming upon the farm. He thought the 
 existence of the custom sufficiently proved ; and as the plaintiff offered an under- 
 taking in damages, he should grant the injunction asked for until the trial. i 
 
 A local custom requiring a lessor to cleanse a leased house before the lessee 
 enters into possession of it, is not binding on one not having knowledge of it. 
 The right of proprietors of a common stairway to the use of the walls to put up 
 business signs of tenants exists by custom.' 
 
 It was early held in South Carolina that a custom In the city of Charleston 
 ■which authorized the owner of a lot of land, after notice to the owner of the 
 adjoining lot, and his refusal to join in putting up a partition fence, to put up 
 such fence at his own expense and hold the party refusing for one-half the cost, 
 was reasonable and valid.* And a custom is valid that when persons owning 
 adjoining lots build simultaneously adjoining houses, having a common wall 
 built equally on each lot, each is bound to contribute to the cost of the wall.s 
 
 It is held in Indiana that the rule that where there is no covenant in the lease 
 by which the lessor undertakes to repair, he is not bound to do so, and the lessee 
 cannot make repairs and charge the cost to him,' cannot be altered by a local 
 custom.' And the general rule, on the sale of property, that the vendee who 
 bears the expense of the conveyance shall prepare It,' may be altered by custom, 
 which may say, for example, that on an agreement for a lease the lessor shall 
 prepare it and the lessee pay for it.' 
 
 § 129. As to Term ot Tenancy. — The custom of the country has frequently 
 been resorted to for an explanation where the question of the time of a Mblding 
 has been left in doubt."" It has been held that, although the express terms of a 
 lease cannot be controlled by the custom of the country, it the lease is entirely 
 silent as to the time of quitting, evidence of the custom of the country may be 
 given to fix the time." Where the holding was general from " Michaelmas," the 
 custom of the country as to whether that shall be deemed old or new Michael- 
 mas was held to be admissible in evidence." Evidence of the custom of the 
 country was held admissible for the purpose of showing that a letting by parol 
 from " Lady-day" meant " old Lady-day." " In another case, where the rent 
 was payable at " Martinmas," the court thought themselves bound by statute as 
 to when the day came; " and in a Nisi Prius case, Erle, C. J., remarked: " The 
 custom of the country cannot be set up against the legal presumption that 
 Michaelmas means any other day than the 29th of September. Ton must show 
 
 1 Carlyonc. Hayward, 24 Sol. J. 807. Shore, 1 H. Black. 274; Doe v. Stillwell, 8 
 
 • Sawtelle «i. Drew, Wa Mass. 228. Ad. & E. 645; Hallings v. Oonnard, Oro. Bliz. 
 3 Bennett v. Seligman, 32 Mich. 500. 617; Helps v. Clayton, 17 C. B. (N. s.) 563. 
 
 * Knox V. Artman, 8 Kioh. L. 283 ; Chi- » GrisaeU v. Robinson, 3 Bing. N. 0. 11. 
 oester v. Walker, S Rich. L. 284. lo Martyn v. Clue, 18 Q. B. 661 ; White v. 
 
 <• Rowland v. Hanna, 2 B. Mon. 131. Nicholson, 4 Man. & G. 95. 
 
 « Wabash, etc., Canal Co. v. Brett, 25 Ind.. " Webb v Pluramer, 2 Barn. & Aid. 746. 
 
 409; Womack v. McQuarry, 28 Ind. 103; Kel- M Pinley i>. Wood, 1 Bsp. 178; Doe v. Bon- 
 
 lenberger v. Foresman, 13 Ind. 475. son, 4 Barn. & Aid. 588; Doe v. Lea, 11 East, 
 
 ' Biddle v. Eoed, 33 Ind. 629. 312. 
 
 ' Price V. Williams, 1 Mee. & W. 6 ; Poolo n Doe v. Benson, supra. 
 
 V. Hill, 6 Mee. & W. 835; Stephens v. De » Smith v. Walton, 8 Bing. 238; Kearney v. 
 
 Medina, 4 Q. B. 422; Duko ol St. Albans «. King, 2 Barn. & Aid. 301. 
 
LANDOED AND TENANT. 271 
 
 Customs as to Fixtures. 
 
 by direct evidence tliat this was an old Michaelmas tenancy." i And a local 
 custom that a lease from the first day of May in one year to the first day 
 of May in a succeeding year expires at noon of the last day, has been held in 
 New York to be not only valid, but convenient to all concerned.' 
 
 § 130. Explaining Terms in Lease.— In the leading case of Smith v. WUson,!^ 
 where, in a lease of a rabbit warren, the lessee covenanted that at the expira- 
 tion of his term he would leave on the warren 10,000 rabbits, the lessor paying 
 for them at the rate of £60 per 1,000, it was held by the Court of Queen's Bench 
 that parol evidence was admissible to show that by the custom of the country 
 where the lease was made, " 1,000," as applied to rabbits, meant " 1,200." 
 
 § 131. As to Fixtures. — Culling v. Taffnal,* decided in 1674, Is thus reported: 
 " In trover, for ten loads of timber. The case was, that the defendant had been 
 tenant to the plaintiff, and erected a barn upon the premises, and put it upon 
 pattens and blocks of timber lying upon the ground, but not fixed in or to the 
 ground ; and upon proof that it was usual in that country to erect barns so, in 
 order to carry them away at the end of the term, a verdict was given for the 
 defendant." This ruling, it has been since thought, might properly have been 
 placed on another ground, as the property in question, not being fixed to the 
 ground, could not rightly be claimed by the landlord. But evidence similar to 
 that admitted in Culling v. Tuffnal has been allowed in subsequent cases for the 
 purpose of determining whether or not, as between landlord and tenant,^or other 
 claimants, certain structures were to be considered as fixtures. Thus, in Davis 
 V. Jones,^ where it had been usual to value a particular article between outcoming 
 and incoming tenant, this custom was held to govern in determining the nature 
 of the property. " Such a practice," said Abbott, C. J., " could not rationally 
 have prevailed if the things had not been generally understood to be in their 
 nature capable of removal, and not fixtures, properly so called; and, therefore, 
 taking the practice as an explanation of their nature and character, we think 
 they are to be considered as personal chattels." In this country, Mr. Justice 
 Story held it competent to prove a usage in the city of Washington authorizing 
 a tenant to remove any building which he might erect upon leased premises,, 
 provided the same was removed before the expiration of the term; * and, follow- 
 ing this ruling, the Supreme Court of Wisconsin, in 1860, recognized a similar 
 custom in the city of Milwaukee.' 
 
 But in a Pennsylvania case it was held that a planing-mill, lathes, and vises in 
 a machine-shop or car-factory were fixtures, and as such belonged to the realty, 
 irrespective of the manner m which they were attached to the building in which 
 they were used, if they were a necessary part of the machinery in carrying on the 
 business, — following previous rulings to that effect in that State,' — and that " it 
 
 1 Hogg 1). Berrington, 2 Post. & Fin. 246. Abridgment, 154, § 11, it is said : "A granary 
 
 ' Wilcox V. Wood, 9 Wend. 348. built on pillars in Hampshire is a oliattel, 
 
 ' 3 Barn. & Adol. 728, post, Cliap. IV. and goes to the executors, and may be 
 
 * Bull. N. P. 34. recovered in trover. This shall be under- 
 
 s 2 Barn. & Aid. 166. And see Watherell o. stood according to the custom of the coun- 
 
 Howells, 1 Camp. 34. tiy." 
 
 « Van Ness v. Pacard, 2 Pet. 137. ' Voorhis v. Freeman, 2 Watts & S. 116 j 
 
 ' Keogh V. Daniell, 12 Wis. 163. And see Pyle v. Fennock, 2 Watts & S. 3S0. 
 
 Teaff V. Hewitt, 1 Ohio St. fill. In Viner's 
 
272 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Landlord and Tenant. 
 
 was not in the power of the defendant to evade this rule of law by proving that 
 there was a custom in opposition to it.'" And in a Massachusetts case it was 
 held that a steam-engine set upon a granite block and fastened down by a bolt, 
 and a boiler set in bricks in such a manner that it could not be removed without 
 taking down the bricks, both being used for running machinery lii an adjoining 
 shop, were realty, and that evidence .of a general custom and usage between 
 manufacturers and purchasers of such property to regard them as personalty 
 was inadmissible.' 
 
 And, of course, where the parties have expressly contracted as to the fixtures, 
 the custom of the country can have no weight. A lease contained a covenant to 
 leave at the end of the term a water-mill, with all fixtures, fastenings, and 
 improvements during the demise fixed, fastened, or set up in or upon the 
 premises, in good plight and condition, reasonable use and wear only excepted. 
 This was held to include a pair of new mill-stones, set up by the lessee during 
 the term, although the custom of the country authorized him to remove them.' 
 An assignment was made of a mill, " fixed machinery, and hereditaments, with 
 all looms and other machinery, fixed or movable." It was held that looms put up 
 by the lessee of the mill for his convenience during the existence of his term, 
 and fastened to the floor so as to be easily removable without injury to the 
 freehold, passed thereunder, notwithstanding a custom in the trade not to regard 
 such looms as fixtures.* But where a lease contained covenants on the part of 
 the lessee to deliver up the premises at the end of the term, '« reasonable use 
 and wear thereof, and damages by accidental fire, or other accidents not happen- 
 ing through the neglect of the tenant, only excepted," these were held not 
 inconsistent with a usage allowing the removal by a tenant of buildings erected 
 by him on the premises.* 
 
 § 132. Not admls9able to contradict Lease.— But, as in the cases cited in 
 the previous section, evidence of usage, though admissible to add to or explain, 
 Is never permitted to vary or contradict, either expressly or by implication, the 
 terms of a written lease.* Where an action was brought by a landlord against 
 an incoming tenant, and the declaration stated that, in consideration that the 
 landlord would give up to the tenant possession of the farm, on which manure 
 had been laid, and would permit him to have the benefit of the manure, he 
 promised to pay the landlord for the same according to the custom of the 
 country, and the breach alleged was non-payment, a written agreement was 
 offered in evidence of the custom, which stated that the land had been manured 
 with eight loads of manure per acre, and that the tenant agreed to leave the land, 
 when given up by him, in the same state, or to allow a valuation to be made. 
 Here it was held that the written agreement excluded the custom of the coun- 
 try, as it was inconsistent with it.' In Boberts v. Baker,' the question was 
 whether a covenant In a lease, whereby the tenant bound himself not, on 
 
 ■ Christian ». Dripps, 28 Pa. St. 271. ford v. Gardner, L. R. 7 0. P. 242; Sutton ». 
 
 Richardson v. Copeland, 6 Gray, 536. Temple, 12 Moe. & W. 52 
 
 I Martyr «^ Bradley 9 King. 24. , ciavko v. Roystone, 13 Mee. & W. 752; 
 
 Boyd ,>. Shorrook, L. R. 5 Eq. 72. Wlltsbear v. CottrcU, 1 El. *BL 6N. 
 
 „ f S,."' *""'"• ^'^ ^"- '''^- ' 1 Oromp. A M. 808 
 
 » See Thorpe v. Eyre, 1 Ad. A B. 928 ; Staf- 
 
LANDLORD AND TENANT. 273 
 
 Customs of the Country. 
 
 tiuitting the land, to sell or take away the manure, but to leave it to be expended 
 by the succeeding tenant, excluded the custom of the country, by which the out- 
 going tenant was bound to leave the manure, and was entitled to be paid for it. 
 The court held that it did. In that case Lord Lyndhurst said: " It was con- 
 tended that the stipulation to leave the manure was not inconsistent with the 
 tenant's being paid for what was so left, and that the custom to pay for the manure 
 might be engrafted on the engagement to leave it. But if the parties meant to be 
 governed by the custom in this respect, there was no necessity for any stipulation, 
 as, by custom, the tenant would be bound to leave the manure, and would be 
 ■entitled to be paid for it. It was altogether idle, therefore, to provide for one 
 part of that which was sufficiently provided for by the custom, unless it was 
 intended to exclude the other part." In another case, it appeared that a tenant, 
 by a clause in his lease, was bound, " at his removal, to leave upon the land all 
 the dung and manure of the preceding year, the value to be paid by the succeed- 
 ing tenant, and at no time to sell or give away any of the hay or straw of the 
 said farm, which shall always be spent on the ground," and the point in dispute 
 was whether the tenant, under that contract, was or was not entitled to take away 
 or sell the straw of the last or waygoing crop, and whether, if the tenant threat- 
 ened to sell the straw, the lessor was entitled (the case having arisen in Scot- 
 land) to letters of suspension and interdict. It was held that the custom of the 
 country could have no operation in such a case, as there was a contract between 
 the parties, with provisions applicable to the point in dispute, and that, conse- 
 quently, letters of suspension and interdict might be had and maintained by the 
 lessor.^ 
 
 § 133. When Lease not inconsistent wltb Custom. — In the oft-cited case of 
 Hntton V. Warren,'' decided by the Court of Exchequer in 1836, it was held that 
 a custom of the country by which the tenant of a farm, cultivating it according to 
 good husbandry is entitled, on quitting, to receive from the landlord or incoming 
 tenant a reasonable allowance for seeds and labor bestowed on the arable land 
 in the last year of the tenancy, and is bound to leave the manure for the land- 
 lord if he will purchase it, was not excluded by a stipulation in the lease under 
 which he held that he would consume three-fourths of the hay and straw on the 
 farm, and spread the manure arising therefrom, and leave such of it as should not 
 be spread on the land, for the use of the landlord, on receiving a, reasonable 
 price for it. The judgment of Mr. Baron Parke in this case has been referred 
 to with approval and quoted from at length both by Mr. Smith in his notes 
 to Wigglesworth v. Dallison,^ and by Mr. Browne in his monograph on Usages 
 and Customs* " It has long been settled in commercial transactions," said Mr 
 Baron Parke, " that evidence of a custom and usage is admissible to annex 
 incidents to written contracts in matters with respect to which they are silent. 
 The same rule has also been applied to contracts in other transactions in life in 
 which known usages have been established and prevailed, and this has been 
 done upon the principle of presumption that in such transactions the parties 
 
 ' Roxbnrgh v. Robertson, 2 Bli. 156. And = 1 Mee. A W. 466. 
 
 see Hughes v. tioi-don, 1 Bll. 287; Clinan v. ' 1 Smith's Ld. Cas. 654. 
 
 Cooke, 1 Sch. & Lei. 22; White r. Sayer, * Page 35. 
 
 Palm. 211. 
 
 It 
 
274 IN DIFFEltENT KKLATION8 AND OCCUPATIONS. 
 
 Landlord and T< iiniit. 
 
 did not mean to pxpress in writing the whole of the contract by which they 
 intended to be bound, but to contract with reference to those known usages.' 
 Whether such a relaxation of the strictness of the common law was wisely 
 applied where formal instruments have been entered into, and particularly leases 
 under seal, may well be doubted; but the contrary has been established by such 
 authority, and the relations between landlord and tenant have been so long 
 regulated upon the supposition that all customary obligations not altered b\- 
 the contract are to remain in force, that it is too late to pursue a contrary 
 course, and it would be productive of much inconvenience if this practice were 
 now to be disturbed. The common law, indeed, does so little to prescribe the 
 relative duties of landlord and tenant, since it leaves the latter at liberty to 
 pursue any course of management he pleases, provided he is not guilty of waste, 
 that it is by no means surprising that the courts have been favorably inclined to 
 the introduction of these regulations in the mode of cultivation which custom 
 and usage have established in each district to be the most beneficial to all par- 
 ties. Accordingly, in Wigglesworth v. Dallison, afterwards affirmed on a writ of 
 error, the tenant was allowed an awaygoing crop, though there was a formal 
 lease under seal. There the lease was entirely silent on the subject of such a 
 right, and Lord Mansfield said that the custom did not alter or contradict the 
 lease, but only superadded something to it. The question subsequently came 
 under the consideration of the Court of King's Bench, in the case of Senior v. 
 Armitage, reported in Mr. Holt's Nisi Prius Cases. In that case, which was 
 an action by a tenant against his landlord for compensation for seed and labor, 
 under the denomination of tenant-right, Mr. Justice Baylby, on its appearing 
 that there was a written agreement between the parties, nonsuited the plaintiff. 
 The court afterwards set aside the nonsuit, and held, as appears by a manu- 
 script note of that learned judge, that though there was a written contract 
 between landlord and tenant, the custom of the country would still be binding, 
 if not inconsistent %vith the terms of such written contract; and that not only 
 all common-law obligations, but those imposed by custom, were in full force 
 where the contract did not vary them. Mr. Holt appears to have stated the 
 case too strongly when he said that the court held the custom to be operative 
 ' untess the agreement, in express terms, excluded it;' and probably he has not 
 been quite accurate in attributing a similar opinion to the Lord Chief Baron 
 Thompson, who presided on the second trial. It would appear that the court 
 held that the custom operated, unless it could be collected from the instrument, 
 either expressly or impliedly, that the parties did not mean to be governed by 
 it. On the second trial, the Lord Chief Baron Thompson held that the custom 
 prevailed, although the written instrument contained an express stipulation that 
 all the manure made on the farm should be spent on it, or left at the end of 
 the tenancy, without any compensation being paid. Such a stipulation certainly 
 does not exclude by implication the tenant's right to receive a compensation 
 for seed and labor. The next reported case on this subject is Webb v. Plummer, 
 in which there was a lease of down-land, with a covenant to spend all the prod- 
 uce on the premises, and to fold a flock of sheep upon the usual part of the 
 farm ; and also, in the last year of the term, to carry out the iiiiinure on parts of 
 the fallowed farm pointed out by the lessor, the lessor paying for the fallowing 
 
 1 See Gibson v. Small, 4 H. L. 0»8. 897, per I'arke, B. 
 
LANDLORD AND TENANT. 275 
 
 Customs of the Country. 
 
 land and carrying out the dung, but nothing for the dung itself, and paying for 
 grass on the ground and threshing the corn. The claim was for a customary 
 allowance for foldage (a mode of manuring the ground"), but the court held 
 that as there was an express provision for some payment, on quitting, for the 
 things covenanted to be done, and an omission of foldage, the customarv obli- 
 gation to pay for the latter was excluded. No doubt could exist in that case 
 but that the language of the lease was equivalent to a stipulation that the lessor 
 should pay for the things mentioned, and no more. The question, then, is 
 whether, from the terms of the lease now under consideration, it can be collected 
 that the parties intended to exclude the customary obligation to make allow- 
 ances for seed and labor. The only clause relating to the management of the 
 farm, except the covenant to repair, is one which stipulated that the plaintiff 
 shall spend and consume on the farm three-fourths of the hay and straw arising 
 not only from the farm itself, but from the demised tithes of the whole parish, 
 and spread the manure, leaving such as should not be spread at the end of the 
 term, for the use of the landlord, on paying a reasonable price for the same. 
 This provision introduces, and has a principal reference to a subject to which 
 the custom of the country does not apply at all, — namely, the tithes, — and 
 imposes a new obligation on the tenant dehors that custom, and then qualifies 
 that obligation by an engagement on the landlord's part to give a remuneration 
 by repurchasing a part of the produce in a particular event. It Is by no means 
 to be inferred from this provision that this is the only compensation which the 
 tenant is to receive on quitting. If, Indeed, there had been a covenant by the 
 tenant to plough and sow a certain portion of the demised land In the last year, 
 being such as the custom of the country required, he being paid, on quitting, 
 for the ploughing; or to plough, sow, and manure, he being paid for the 
 manuring, the principle of expressum facit cessare taciturn, which governed the 
 decision in Webb v. Flummer, would have applied; but that is not the case here. 
 The custom of the country as to the obligation of the tenant to plough and sow, 
 and the corresponding obligation of the landlord to pay for such ploughing and 
 sowing in the last year of the term, is in no way varied. The only alteration 
 made in the custom is that the tenant Is obliged to spend more than the produce 
 of the farm on the premises, being paid for it in the same way as he would have 
 been for that which the custom required him to spend." 
 
 If a lease contain no stipulations as to the mode of quitting, the oftgoing 
 tenant is entitled to his waygoing crop, according to the custom of the country, 
 even although the terms of holding may be inconsistent with such a custom.^ 
 Although this might at first sight seem repugnant to the doctrine stated in the 
 previous section, it will, upon examination, be found to be in strict conformity 
 with the principle of that doctrine ; for the agreement under which the tenant 
 held, in the case in which the above principle was enunciated, was silent 
 altogether as to any terms on which the tenant should quit, and the clause of the 
 agreement which was inconsistent with the custom of the country was a stipu- 
 lation confined expressly to the period of holding by the tenant. It adverted to 
 nothing that was to take place at the end of the tenancy, and spoke only of 
 terms of holding during its continuance. There was, therefore, notliing in such 
 an agreement at variance with the application of a custom between landlord and 
 
 > HoldiDg ». Pigott, 7 Bing. 460L 
 
276 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Master and Servant — Employer and Employee. 
 
 tenant which did not come into force until the expiration of the term. In that 
 case, the rights of the landlord and tenant were governed by the terms of the 
 agreement during the tenancy, and by the terms of the custom Immediately 
 afterwards. It is clear that, as the agreement only referred to the contin- 
 uance of the tenancy, both the landlord and tenant must have anticipated not 
 only an end to the holding, but must have looked forward to a time when 
 their mutual relations must be regulated by some other rule than that con- 
 tained In the agreement. As there is nothing said as to the end, there is the 
 ambiguity of silence, which the custom of the country can be called upon to 
 explain.' Again: where, by the terms of a farm lease for seven years, expiring 
 at Michaelmas, the tenant agreed to cultivate the land according to the custom 
 of the country, and " during the term to consume with stock in the farm all the 
 hay, straw, and clover grown thereon, which manure shall be used on the 
 farm," and the landlord agreed to let the tenant occupy part of the homestead 
 until midsummer, after the expiration of the term, if necessary, " to end the 
 cropping of the tenant grown on the premises," it was held that the lease did 
 not exclude the custom of the country, by which the tenant, having paid for 
 straw on his incoming, was entitled to be paid for straw on his quitting.' 
 
 VI. Master and Servant — Employer and Employee. 
 
 In the relation of master and servant, and on all contracts for service, custom 
 and usage are often important to determine the rights and liabilities of the par. 
 ties. A majority of the cases in which this question has been determined by the 
 courts have arisen upon the construction of written contracts of service, and 
 will be found fully stated in a subsequent chapter, wherein the effect of usage 
 in the construction of written instruments is discussed. Independently of this, 
 however, several cases are to be found in the books, of more or less practical 
 importance to the lawyer, and in which evidence of usage has been received to 
 determine the length, the terms, and the proper performance of a servant's or an 
 employee's engagement. ' 
 
 § 134. As to Terms or Conditions ol Service. — Usage may regulate the condi- 
 tions of the employee's service. Thus, it may be admissible to show the length 
 of a hiring ' when there is no express agreement as to the time the servant is to 
 work.* In Cunningham v. Fonblanque,'' there was admitted in evidence a usage 
 between the printers and proprietors of newspapers that the latter should give 
 to the former four weeks' notice of taking the work from them, or pay them four 
 weeks' wages." In Qivenv. CAajroji,' which was an action for a wrongful dis- 
 missal, evidence of a custom among dry-goods jobbers in Baltimore that when 
 a clerk or salesman begins n, season witliout a special contract he cannot be 
 dismissed till the end of it, and that the seasons are two, — one from January 
 Ist to July 1st, and the other from July 1st to January 1st, — was admitted. 
 
 I Browne on Usages & Customs, 41. » 6 Oar. It, P. 44. And see Perkins v. Jor- 
 
 - Muncey v. Dennis, 1 Hurl. & N. 216. dan, 35 Mc. 23, 
 
 ' Tlie Swallow, Olo. Adm. 334; Harris v. « Cunninglmm v. Foablanque, 6 Car. & P. 
 
 Nicholas, 6 Munf. 483. 44. 
 
 ' Gleason v. Walsli, 43 Mo. 397. ' 16 Md. 502. 
 
MASTEK AND SERVANT EMPLOYER AND EMPLOYEE. 277 
 
 Performance of Services — TJsaKe. 
 
 "We think," said the court, "the testimony was properly admitted. It was 
 pertinent to the contract declared upon, and a link in the chain of evidence to 
 establish a custom existing among dry-goods jobbers as to the time for which 
 they were to be understood as employing clerks, when nothing was said in 
 regard to it. The question of the reasonableness of the custom was not involved 
 in the offer." ' And a custom under which journeymen and employees are 
 required to work for their employers a certain number of hours a day, and are 
 allowed the privilege of working for themselves at other times, is not unreason- 
 able.^ But the usage must be a reasonable one ; and for lacking this requisite 
 to the validity of a custom, a custom that a person employed to cat staves from 
 another's bolts has a right to take and appropriate to his own use both the clip- 
 pings and corner-pieces and the culls, without the consent of the owner, has 
 been adjudged invalid.' A usage on the part of business establishments to fur- 
 nish each other's clerks with goods and charge them to each other, has been 
 recognized in Michigan.' 
 
 As to the effect of custom on the term of the employment, see the leading case 
 otSolcroft V.Barber. ^ 
 
 § 135. As to tlie proper Perlormance ot a Service. — And usage may be 
 properly shown in order to settle a question as to the proper performance of the 
 duties of a particular service.* Therefore, where the plaintiffs, who were book- 
 sellers, employed the defendant, a printer, to print for them an edition of one 
 thousand copies of a book called "Taylor's Holy Living," but the latter printed 
 fifteen hundred copies, delivering them one thousand and disposing of the 
 remainder to his own use, it was held, in an action brought by them for damage 
 caused by the market being thus overstocked, that it was a proper subject of 
 testimony to show that, according to the usage among printers and booksellers, 
 a printer contracting to print for a bookseller a certain number of copies of any 
 work is not at liberty to print from the same type, while standing, an extra num- 
 ber for his own disposal.' So, also, it is competent to prove a custom that the 
 employment of an architect to make plans and designs for a building carries 
 with it an employment to superintend its construction.^ So, in Texas it might 
 be shown, before the abolition of slavery, that on a contract of hiring of a slave 
 to do ordinary and customary labor, the slave may be employed in cleaning out 
 a well.» 
 
 In Reade v. Sweetzer,^" Charles Keade, the English novelist, having brought an 
 action of libel against the publisher of a weekly newspaper in New York, called 
 the Round Table, for charging him with dishonorable practices in allowing his 
 name to be given to the publications of others, evidence was offered and 
 admitted which went to show, on the testimony of literary men, that it was a 
 
 1 In a recent Illinois case, a custom among ' 1 Car. & Kir. 4, ante, p. 175 ; Baxter v. 
 
 •wholesale merchants in Chicago was set up Nnrs«, 1 Car. & Kir. 10; 6 Man. & G. 935. 
 
 allowing their salesmen pay for time lost by " Vaughn v. Gardner, 7 B. Mon. 326; Hunt 
 
 sickness. But the court held it not suffi- v. Carlisle, 1 Gray, 257 ; Martin v. Hilton, 9 
 
 ciently proved. Sweet v. Leach, 6 Bradw. Mete. 371 ; Hunt v. Mickey, 12 Mete. 319. 
 
 212. 7 Williams r. Gilman, 3 Me. 276. 
 
 < Barnes v. Ingalls, 39 Ala. 193. ' Wilson v. Bauman, 80 111. 493. 
 
 » Wadley v. Davis, 63 Barb. 501. » Willis v. Harris. 26 Texas, 139. 
 
 1 Cameron v. Blackman, 39 Mich. 108. '« 6 Abb. Pr. (N. S.) 9. 
 
1'78 I.N UIl'i'KKENT KELATIONS AND OCCUPATIONS. 
 
 Master and Servant — Employer and Employee. 
 
 common custom for authors having a book to write to employ others to aid them 
 in compiling it, and that such fact being known would not damage their 
 reputation. 
 
 § 136. As to Wages and Compensation. — Usage may regulate an employee's 
 wages." Thus, the mode of paying the crews of vessels,^ the proper charges of 
 a veterinary surgeon,^ and the right of a local agent employed to sell glass-ware 
 in a certain territory to claim commissions both upon goods ordered directly 
 through him and upon goods ordered by buyers living in the territory of the 
 agent, directly from the manufacturer,* have been shown by evidence of custom. 
 So, If there be any general custom in a particular business under which pay- 
 ment becomes due weekly, monthly, or otherwise, the parties will be presumed 
 to have contracted with reference thereto, and payment must be made in 
 accordance therewith;^ and soon the question of the proper charges of phy- 
 sicians, lawyers, and mechanics, evidence of usage is admissible.^ The proper 
 criterion in the assessment of a quantum meruit is the usual and reasonable 
 price which others have received for similar services.' 
 
 In Gillett v. Mawman,^ the plaintiff was a printer, and sought to recover for 
 printing for the defendant a translation of the travels of Anacharsis. The work, 
 it appeared, was nearly completed, when a Are accidentally broke out on the 
 plaintiff's premises, and the whole impression was consumed. The defendant 
 contended that the work was not completed, and showed that under these cir- 
 cumstances, according to the custom of the trade, the plaintiff was not entitled 
 to be paid for any part of the printing. Said Lord Mansfield, C. J.; "The 
 custom of the trade was very fully established. It was proved that the printer, 
 by the general usage, was not entitled to be paid for any part of his work until 
 the whole was completed and delivered. This custom is the law of the trade, and, 
 as far as it extends, it controls the general law." In KeckeUy v. Cummins,^ the de- 
 fendant's children entered the plaintiff's school, and remained there one quarter 
 and a few days over, when they left. The defendant offered to pay for the time 
 the children were actually at school, but the plaintiff demanded pay for the quar- 
 ter, claiming it by custom, to prove which witnesses were introduced. He was 
 held entitled to recover, Hugbe, J., saying : " The custom has long prevailed in 
 this State of charging by the quarter, and I do not recollect any instance Of its 
 having been contested. The custom is a reasonable one, and ought to be sup- 
 ported." In Thomas w. '.ffara,'" the plaintiff was the proprietor of a news- 
 paper, and sued for his charges for the insertion of an advertisement therein a 
 certain number of times. When the advertisement was sent to the office, the 
 
 ' Sewell V. Col-p, 1 Car. &P. 392. ell, 2 Smith's Ld. Cas. 21; Gray v. Murray, 
 
 = Eldridge ». Smith, 13 Allen, 140. But not 3 Johns. Ch. 167. 
 if unreasonable. Mctcalf v. Weld, 14 Gray, -J Puisell v. McQueen, 9 Ala. 380; Hayes 
 
 *!'• V. Moyiiihan, 60 111. 409; Ewing v. Beau- 
 
 = Sewell V. Covp, supra. t champ, 4 Bibb, 4ii6 ; Johnson v. De Peyster, 
 
 •> Lyon o. George, 44 Md. 295. 50 N. Y. 466. 
 
 '■ Thayer .;. Wadsworth, 19 Pick. 349; -> Murray v. Ware, 1 Bibb, 335. But see 
 
 Dodge V. Favor, 15 Gray, 83. And see Hunt Sennetti'. Pierce, 1 Mart. (N. S.) 192 
 V. Otis Co., 4 Mete. 4li4 ; Naylor v. Fnll llivor 8 i Taun. 13S. 
 
 Iron- Works, 118 Mass. 317 ; Baxtci- r. \urso, « Harp. 268. 
 
 6 Man. & G. 935; 1 Car. & Kir. 10; Fairman >» 1 Mill Const. 303. 
 
 V. Oalifovd, 6 Hurl. & N. 636; Cutter v. Povv- 
 
MASTER AND SEUVAXT EMPLOYER AND EMPLOYEE. 279 
 
 Partnership. 
 
 order to insert it was general, without directions as to tlie time when it should 
 be discontinued. The plaintiff admitted a part of the demand, but contended 
 that the advertisement should have been sooner discontinued. In reply, the 
 plaintiff offered to show that it was the usage of the business to insert all adver- 
 tisements which were not accompanied by special instructions, until an express 
 order was received to discontinue them; but the trial court excluded the 
 evidence. This, on appeal, was held to be error. Where the parties disagreed 
 as to the price to be paid for hauling lumber, evidence was admitted to show 
 the usual and common price at that time and place for similar services ; also, 
 evidence Qf the amount paid to one or more individuals for drawing the same 
 kind of lumber over the same route at the same time.^ 
 
 A custom among builders that one-third of the stipulated price for building a 
 house is payable when it is covered in, one-third when the floors are laid, and 
 one-third when all the carpenter-work is completed,'' is admissible to alter the 
 rule of law that under an entire contract for the building of a house, which is 
 destroyed by fire before its completion, the workman can recover nothing.' 
 Evidence of a usage to receive natives temporarily on board vessels on the 
 coast of Africa, and to leave them at convenient ports in the course of the 
 voyage, paying them at the discretion of the master, is admissible to determine 
 the extent of the liability of the owner of a vessel when sued for wages by a 
 native employed on board the vessel.* A usage that the master is liable for his 
 apprentice's board while he is sick, is valid.* 
 
 §137. Contract not wholly perlormed — Quantum Meruit. — In Gutter v. 
 Powell,^ where it was held that where a sailor was hired for a full voyage, and 
 died before the end thereof, no wages could be claimed either on the contract or 
 on a quantum meruit, it was said by Lawrence, J. : "If the plaintiff in this case 
 could have proved any usage that persons in the situation of this mate are 
 entitled to wages in proportion to the time they served, the plaintiff might have 
 recovered according to that usage." It is clear, therefore, and so it has been 
 repeatedly laid down, that a court may infer, or the jury may find from the 
 general and known practice and usage in such cases, that though a contract for 
 personal service is entire, yet the compensation is payable by instalments, or is 
 due as earned, at stated periods.' 
 
 VII. Partnership. 
 
 § 138. Powers of Partners may depend on Custom. — It is a general principle 
 in the law of partnership that one partner may bind the firm by any act or con- 
 tract that comes within the Ordinary scope of the partnership business ; * and 
 
 ' Swain v. Cheney, 41 N. H. 232. ' Cunningham v. Morrill, 10 Johns. 203, 
 
 2 Partridge j;. Forsyth, 29 Ala. 200. and cases cited; 2 Smitli's Ld. Cas. 17-53. 
 
 3 Partridge v. Forsyth, supra; Drake ». Consequently the ruling in Petty v. Gale, 25 
 Goree, 22 Ala. 409 ; Brumby v. Smith, 3 Ala. Ala. 473, that evidence of a usage to pay pro 
 123. rata on contracts of hire where a servant 
 
 * Sunday v. Gordon, Elatchf. & H. Adm. fails to worlt the full time agreed on, even 
 
 569. if proved, could not be recognized, is bad 
 
 ^ Emmons v. Lord, 18 Mc. 351. law. 
 « 6 Term Rep. .320; 3 Smith's Ld. Cas. 17. » Cox v. Hickman, 8 H. L. Cas. 268; Haw- 
 
280 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Partnc'i'ship. 
 
 this implied authority cannot, as to third parties without notice, be limited even 
 by the articles of agreement.' But the necessity that the authority, to be valid, 
 must be exercised within the ordinary business and transactions of the firm, 
 renders the question of usage an important one in arriving at the liabilities of 
 the partnership in any case. "Thus, for example," says Judge STORy,^ "in 
 cases of factorage, it is a common, though not an invariable usage, to guaranty 
 the solvency of the purchasers on sales made by the factor, and to receive 
 therefor a commission del credere; and this would be deemed an authority 
 within the scope of a partnership formed for factorage purposes, although it 
 could not be shown that the partners had stipulated for that power in their 
 articles of partnership, or, even if they had excluded it by such articles, if it was 
 unknown to the principal for whom they were dealing.' So, it is the common 
 course of business for persons engaged in the purchase and sale of horses to 
 give a warranty on sales made by them ; and, therefore, a warranty made in the 
 course of such business by one partner would bind the partnership, notwith- 
 standing the articles prohibited such warranty, if the purchaser were unac- 
 quainted therewith. On the other hand, where it is not the common course of 
 the business in which a partnership is engaged, to give letters of guaranty or of 
 credit, if one partner should give such a letter of guaranty or credit, it would 
 not be binding on the firm, although given in the name thereof.* For the like 
 reason, if one partner should, in the name of the firm, make purchases of goods 
 not connected with the known business of the firm, such purchases would not 
 bind the partnership. Thus, for example, if a partnership is engaged in the 
 mere business of selling dry goods by wholesale or retail, unconnected with 
 navigation, a purchase of a ship by one partner in the name of the firm would 
 not be binding on the other partners unless they should assent thereto. So, if 
 persons are engaged in the mere business of tallow-chandlers as partners, a 
 purchase of a cargo of flour, or of pepper, or of coffee, or of other things, by 
 one partner, wholly beside the business of the firm, would not bind the other 
 partners. But if the articles were such as might be applied or called for in the 
 ordinary course of their business, the purchase of such articles would bind the 
 firm, even though they were unnecessary at the time, or were bought contrary to 
 the private stipulations between the partners, or were not designed to be used 
 In the partnership at all, if the vendor was not acquainted with the facts. The 
 real difficulty, in many cases of this sort, is to ascertain what contracts, engage- 
 ments, and acts are properly to be deemed within the scope of the particular 
 partnership trade or business; for these are not exactly the same in all sorts of 
 
 ken V. Bourne, 8 Mee. & W. 703; B.istman 176; 6 Pet. 529; Davis ». Richardson, 45 Miss, 
 
 V. Clark, 53 N. H. 276; Campbell v. Dent, 64 *99; Hayward v. French, 13 Gray, 453; Ster- 
 
 Mo. 325; Foxw. Clilton, 6BinB. 792; Walden I'ng v. Jaudon, 48 Barb. 459; Mecbanics' 
 
 V. Sherburne, 15 Johns. 422; Van Keuron v. Bank v. Foster, 44 Barb. 87. 
 
 Parmelee, 2 N. Y. 526; Winshlp v. Bank ot " Story on Part., §§ 111-113. 
 
 the United States, 6 Pet. 661; Greeley v. ' Sandilands w. Marsh, 2 Barn. & Aid. 673; 
 
 Wyeth, 10 N. H. 16; Kenney ». Altvater, 77 Hope v. Oust, 1 East, 53; E.t parte Nolte, 2 
 
 Pa. St. 34; Blodgett ». Weed, 119 Mass. 216; Glyn &J. 295. 
 
 Pahlman v. Taylor, 75 111. 629; Deckoll w. * Hope v. Oust, 1 East, 53; Duncan v. 
 
 Howell, 42 Oal. 638; First National liaiik v. Lowndes, 3 Camp. 478; ilaslebam ?■. Yoing, 
 
 Carpenter, 41 Iowa, 618. 6 Q. B. 833; Brettol v. Williams, 4 Exch. 023- 
 
 ' United States Bank v. Binncy, 6 Masmi, (overruling Ex parte Gar^loin, 16 Ves. 286). 
 
PAKTNER8H1P. 281 
 
 Powers of Partners. 
 
 trade or business.' On the contrary, in many cases, rights, powers, and author- 
 ities over the partnership property and partnership concerns exist either by 
 usage, or by general understanding, or by natural implication, which are wholly 
 unknown in others. To answer the inquiry, then, satislactorily, it is not enough 
 to show that in other trades or other business, certain rights, powers, and 
 authorities are incident thereto, and may be lawfully exercised by each of the 
 partners ; but we must see that they appropriately belong to, or are by usage or 
 otherwise implied or incidental to the particular trade or business in which the 
 partnership is engaged." ' 
 
 In Qalloway v. Hughes,' where a member of a partnership engaged in trans- 
 porting cotton by boats from the upper country to Charleston, contracted to sell 
 as well as to carry a certain lot, and also to bring back the proceeds, it was held 
 that the firm was liable upon the contract, it being shown that it was the usage 
 among boatmen on the river to undertake the sale of cotton when requested to 
 40 so, as an incident of the carriage and as a means of procuring freight. The 
 principles applicable to the case before the court were clearly, but somewhat 
 oddly, stated by Johnson, J. "There is no limitation or restraint," said he, 
 ''upon the associations of men for proper and legitimate purposes. They may 
 be extended to all the pursuits of Industry and enterprise, and they may be lim- 
 ited to the catching and selling of oysters. And in every association the part- 
 ners are liable for the acts of each other, exactly so far as they are necessary to 
 the object of the parnership, and no further. Two men unite their stock in 
 merchandise, and agree to share the profit and loss. If one purchase goods on 
 account of the concern the other is liable, because that is directly in the pursuit 
 of the object of their association; but if one should take upon himself to build a 
 castle, and to fortify and man it, there would be no reason or justice in subject- 
 ing the other to the expenditure incurred by it. He is not bound, because he did 
 not assent to it. Supposing the facts to exist which this question assumes, the 
 inquiry then would be whether the obligation to sell cotton carried on freight is 
 Implied in the obligation to carry ; for in that event alone would the partners be 
 liable for a defalcation of one in the sale. If I were to answer this inquiry 
 without reference to the usage in regard to it, I should unhesitatingly pronounce 
 that it did not. The capacity to manage a boat and to strike a good bargain are 
 not necessarily identified. In the one, physical strength is in some degree indis- 
 pensable ; in the other, a knowledge of trade is required. One who handles an 
 oar or a pole with dexterity might find himself overmatched in a market. Or if 
 I were to judge of this matter from my own observation, I should come to the 
 same conclusion. The sale of produce, it is true, is sometimes confided to a 
 boatman, but this is rare. Most of the planters confide that matter to factors 
 or agents residing in town. But this question can only be resolved by usage. 
 * * * The terms used to designate the objects of the partnership between the 
 defendants are general, and express no more than an association to carry on the 
 
 ' London, etc., Soo. ». Hagers town, etc., 2 Dickinson i;. Valpy, 10 Barn & Cress. 128; 
 
 Bank, 36 Pa. St. 498; Thompson o. Franks, Brettel ». Williams, 4 Ex. Oh. 1)23; Hantayne 
 
 37 Pa. St. 327, Livingston v. Pittsburg, etc., v. Bourne, 7 Mec. & W. 395; Ex parte Chip- 
 
 K. Co., 2 Grant Cas. 219 ; Maltby v. Railroad pencjale, 4 De (i. M. & ii. 19. 
 
 Co., 16 Md. 422; Oadwallader v. Kroesen^ 8 1 Bailey, 553. 
 
 22 Md. 200 ; Freeman v. Carpenter, 17 Wis. 
 
 126. 
 
282 IN DIFFKRENT RELATIONS AND OCCUPATIONS. 
 
 Partner.-ihip. 
 
 trade of boating on the river on their joint account and for their joint benefit; 
 and their leading object was doubtless the profit to be derived from freights. 
 They imply, however, and necessarily, all the incidents to the leading object. 
 To earn freight, boats properly manned, provisioned, and equipped are indispen- 
 sable ; and hence the obligation of the partners to share the cost of the boat, the 
 hire of hands, provisions, etc, ; and it is upon the faith of this joint liability that 
 one partner obtains credit for the firm. These things fall so directly within the 
 objects of the partnership that no one would question their joint liability. But 
 in the mixed and multifarious transactions of men it is sometimes difficult, in a 
 particular transaction, to determine whether it belongs to the actor in his indi- 
 vidual or partnership character, and in the solution of this difliculty I know of no 
 rule so certain, practical, and safe as the common opinion and usage of those 
 most conversant with the business." This case is much like Waring v. Orady,^ 
 with which all the adjudications on the subject are in accord.' 
 
 § 139. Usages as to Nameot Firm. — Where the partnership has not adopted 
 a composite name, the fact that they did business in the individual name of one 
 partner may be shown by usage.' 
 
 § 140. Common Report cannot prove a Partnership. — Though it was held 
 in a few early cases in New York that a partnership might be proved by evi- 
 dence of general reputation,* these decisions were subsequently overruled,* and 
 it is now settled, both in that and other States, that evidence that it was the 
 common understanding in the locality that a partnership existed, is not sufficient 
 proof of such relation.6 Were this otherwise, a person of doubtful credit might 
 circulate the report that another was in partnership with him, for the purpose 
 of maintaining his credit; or his creditors might spread the report, in order to 
 make their debt more secure.' It may be added that neither is evidence of 
 reputation admissible to prove the dissolution of a partnership.^ 
 
 In Foye v. Leighton,^ two defendants were sued for the value of labor and 
 services rendered by the plaintiff, and on the trial they introduced evidence 
 showing the manner in which the business was carried on in the brick-yard 
 
 1 Ante, p. 178. 4 Whitney v. Sterling, 14 Johns. 316 ; Gow- 
 
 'iEthendge«.Binne7,9Picl£.272;Board- an «. Jackson, 20 Johns. 176; McPheraon 
 
 man v. Gore, 15 JIass. 331; Smitli v. Collins, v. Ratlibone, U ^Vend. 96. And see Allen v 
 
 115 Mass. 388; Cayton v. Hardy, 27 Mo. 536. Rostnin, 11 Serg. &. R 373 
 
 As to the usage of masters of whaling- 6 see Halliday «. McDougall, 20 Wend. 81. 
 
 vessels entering into partnership in their • Bryden v. Taylor, 2 Har. & J. 396; Brown 
 
 catches, and as to usages of the whaling v. Crandall, U Conn. 93; Go.ldard v. Pratt, 16 
 
 busmess generally, see Baxter v. Rodman, 3 Pick. 413 ; Pitcher v. Barrows. 17 Pick. 361 ; 
 
 fo. ,1 ; Thomi,son v. Hamilton, 12 Pick. Hicks v. Cram, 17 Vt. 449 ; Carlton ». T,udIow 
 
 425; Aberdeen Co. v Sutter, 2 Pat. Sc. App. Woollen Mills, 37 Vt. 496; Grafton Bank v. 
 
 1106, iennings v. Lord GrenviUe, 1 Taun. Moore, 13 N. H. 99; Carter v. Douglass, 2 Ala. 
 
 241. As to the usages of the whaling trade. aoO; Campbell v. Hastings, 29 Ark. 612 Soott 
 
 where tlie compensat.on is generally a «. Blood, 16 Me. 193; Sinclair «. Wood, 3 Cal. 
 
 share m the catchmgs, see Swift v. Gilford, 98; Lockridge v. Wilson, 7 Mo. 660; jjowen 
 
 2 Lowell, 110; Smith v. Lawrence. 26 Conn. „. Rutherford 60 111 41 
 
 Th'IITo^^J'^II' "° ■"*"• *"*= ^^"^ "■ ' J'™"'" "• c™'"l"all.' n Conn. 92. 
 
 Mitchel 2 Mete. 66. s Goddard «. Pratt, io Pick. 112. 
 
 Le lloy V. Johnson, 2 Pet. 200; Ontario » 33 N. H 71 
 Bank v. Hennessey, 48 N.Y. 645. 
 
PARTNERSHIP. 283 
 
 Partners Bound by Usage. 
 
 in which the plaintiff labored, as tending to show that their interests in the yard 
 and business were entirely separate. The defendants then offered to show, 
 which offer the court permitted, that the same method of conducting busi- 
 ness was adopted in other yards of similar extent, where the business 
 was carried on by one person, or jointly by two or more persons. But the 
 Supreme Court considered that this latter proof was wrongly admitted. 
 " This," said Eastman, J., " we cannot regard as having any tendency to estab- 
 lish a custom or usage by which individuals in this kind of business are to be 
 judged in partnership. It shows the manner in which the business is done, — that 
 it is carried on in the same way, whether more or less are engaged in it, — but it 
 can have no tendency to fix the existing contracts between the parties transact- 
 ing the business, any further than it shall apply to the yard in regard to which , 
 the evidence is given." 
 
 Evidence of usage may, however, be of value in establishing a partnership as 
 to third persons. As between themselves, the partners can only be considered 
 as such, and a partnership, in tsict, can on'y exist where there is a voluntary 
 agreement entered into for that purpose; aud there can be no such thing as a 
 partnership inter se against the intention of the parties to the contract. ' 
 
 § 141. But Usage may be controlling as to Third Persons. — As to third 
 persons, parties may be liable as partners in two ways — by being partners in 
 fact, as between themselves, or by holding themselves out to the public as such. 
 In the first case the relationship and the liability are apparent and plain, while 
 in the second the law does not permit them to deny the relation to the prejudice 
 of third parties, and, on the principle of estoppel, they are held to the same 
 liabilities to those who have acted on the belief of the partnership as if such a 
 
 1 Marquand ». New York Man. Co., 17 Hesketh B.Blanchard, 4 Bast, 144; Gibson o. 
 Jobns. 635; Howell v. Harvey, 5 Ark. 270; Lapton, 9 Bing. 297; Goods v. McCartney, 
 Porter v. McOlure, 15 Wend. 187; Boekleu 10 Texas, 193; Uoss v. Drinker, 2 Hall, 415; 
 «. Hardenbergh, 60 N. Y. 8; Loomis v. Mar- Allen v. Dunn, 15 Me. 293; Price v. Alexan- 
 ehall, 12 Conn. 70; I/eggett v. Hyde, 68 N. Y. der, 2 G. Greene, 427; McArthur v. Ladd, 5 
 272; Hedge's Appeal, (iS Pa. St. 273; King- Ohio, 431; Bailey v. Clark, 6 Pick. 372; Bar- 
 man V. Spurr, 7 Pick. 235; Channel v. Fas- nett». Smith, 17 111. 565; Drake v. Rainey, 3 
 aitt, 16 Ohio, 166; Freeman v. Bloomfleld, Rich. L. 37; Ogden v. Aator, 4 Sandf. 311; 
 43 Mo. 391; Bishop v. Georgeson, 60 111. Nutting ». Colt, 3 Ilalst. Ch. 539; Motleys. 
 484; Green v. Beesley, 2 Biug. N. O. 108; Jones, 3 Ired. L. 144; Kellogg «. Griswold, 12 
 Wilson V. Whitehead, 10 Mee. & W. 603; Vt. 291 ; Newman o. Bean, 1 Post. 93 ; Stearns 
 Emanuel ti. Dr.iughn, 14 Ala. 303 ; Barrett v. v. Haven, 16 Vt. 87 ; Mason v. Potter, 26 Vt. 
 Swan, 17 Me. 180; French v. Styring, 2 C. B. 722; McCauley v. Cleveland, 21 Miss. 438; 
 (N. 8.) 357; Halstcad u. Sohmelzel, 17 Johns. Moore v. Smith, 19 Ala. 774; Olmstead v, 
 80; Brown v. Tapscott, 6 Mee. & W. 119; HUl, 2 Ark. 346 ; Taylor «. Perkins, 26 Wend. 
 Quine v. Quine, 9 Smed. & M. 155; Griffith 124; Normenti). Hull, 1 Humph. 320; Hawes 
 V. Buffum, 22 Vt. 181; Goule v. Hayward, 1 v. TilUnghast, 1 Gray, 289; Chase v. Barrett, 
 Cal. 345; Smith v. Wright, 6 Sandf. 113; 4 Paige, 148; Potter v. Moses, 1 R. I. 430; 
 Gilpin V. Enderby, 6 Barn. A Aid. 9S4; Wilkinson v. Jett, 7 Leigh, 15; Lowry «. 
 Muzzy S.Whitney, 10 Johns. 226; Salter v. Brooks, 2 McCord, 421; Bull v. Sohuberth, 
 Ham, 31 N. Y. 321; Gill v. Kuhn, 6 Serg. & 2 Md. 38; Winship v. Bank ol the United 
 R. 337; Kerr v. Potter, 6 Gill, 404; Rawlin- States, 5 Pet. 529; Handle v. The State, 49 
 son V. Clarke, 15 Mee. & W. 292 ; Stocker v. Ala. 14 ; Hazard v. Hazard, 1 Story, 371 ; Lamb 
 Brocklebank, 3 Man. & G. 350; Wilkinson v. v. Grover, 47 Barb. 317; Lintner v. Millikiu, 
 Frazier, 4 Esp. 182; Mair v. Glonnie, 4 Man. 47 111. 178; Newman ». Bean, 21 N. H. 9S. 
 & Sel. 240; Geddes v. Wallace, 2 Bli. 270; 
 
^84 IN DIFFEKENT RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 relation had been actual.' . It is in this last class of cases that evidence is com- 
 petent to show such a "holding out" by the party sought to be charged as to 
 estop him from denying his liability. 
 
 Thus, in Oill v. Kuhn,' the firm of Gill, Canonge & Co. entered Into a contract 
 with one Peter Kuhn, an auctioneer, in which it was agreed between all the par- 
 ties to follow their several occupations together in the same establishment, but 
 without any copartnership, which it was expressly agreed should not exist. It 
 being shown that it was their practice to issue bills of lading and give receipts 
 containing their names jointly, and to issue circular letters signed, " Peter Kuhn 
 & Son, auctioneers; Gill, Canonge & Co., commission merchants," It was con- 
 sidered, in the Supreme Court of Pennsylvania, that as to third persons they had 
 undoubtedly made themselves responsible as partners. ' So, a habit of advertis- 
 ing • or making out bills * in the joint name, or distributing handbills in which 
 the name of the defendant appeared as a partner, « or marking merchandise with 
 a firm-name,' or executing contracts or conveyances jointly,' may be shown in 
 evidence for this purpose.' 
 
 VIII. Principal and Agbnt. 
 
 § 142. Agency must be executed in Accordance with Usage. If it is the 
 
 usage of a place that a mercantile agency should be executed in a parllcular 
 way, the parties who authorize and agree to exercise this agency impliedly 
 incorporate this usage into their contract." Thus, a broker cannot bind his prin- 
 
 1 Fox ». Olilton, 6 Bing. 776; Dickinson v. ' Penn v. Kearney, 31 La. An. 21. 
 
 Valpy, 10 Barn. & Cress. 128; Goode e. Ilav- « Crovvel) v. Western Beserve Bank 3 
 
 riBon, 5 Barn. & Aid. 147 ; Spencer v. Billinif , Ohio St. 406. And see Conklin v. Barton 43 
 
 3 Camp. 310; Bxparte W^atson, 19 Ves. 459; Barb. 435. ' 
 
 Parkeru. Barker, IBrod.&B. 9; Bond)). Pit- « And see Bennett v. Holmes, 32 Ind. 108' 
 
 tard, 3 Mec. & W. 357; Bonfleld o. Smith, 12 Cragin v. Carleton, 21 Me. 493; Hall v Lan- 
 
 Mee. &W.405; Wangh ». Carver, 2 H. Black. ning, 91 U. S. 160. So, where the issue ia 
 
 235 ; Hoare v. Dawes, 1 Doug. 371 ; Young v. whether a certain house Is a hotel, the cus- 
 
 Axtell,2 H. Black. 2i2; Ex parte Langdale, 2 torn of its proprietors to so advertise it is 
 
 Rose, 444; Mclver v. Humble, 16 East, 169; relevant. Stiinger f. D.avis, 35 Cal 25 
 Martyn v. Gray, 14 0. B. (N. s.) 824; Edmon- lo whart. on Ag., § 134;' Young v' Cole 
 
 son V. Thompson, 2 Fost. & Fin. 564; Palmer 8 Bing. N. C. 721 ; Sutton v. Tatham 10 Ad' 
 
 i>.Pinkham,33Me.32; Bowen r. Rutherford, & E. 27; Bayliffe v. Butterworth 1 Exch' 
 
 60ni.41;Beber». Machine Co., 12 Ohio St. 445; Graves v. Lcgg, 2 Hurl & N 210- 
 
 175; Gumbel v. Abvams, 20 La. An. 668; Pickering v. Buck, 16 East 38- Brady ' 
 
 Drennen v. House, 41 Pa. St. 30; Dutton v. Todd, 9 C. B. (N. s.) .592; Frank 'v Jenkins' 
 
 Woodman, 9 Gush. 255; Field v. Tenney, 47 22 Ohio St. 577; Schuchardt v. Allen 1 Wall' 
 
 N.H.513; Wood».Pennell,51Me.52;Bowie 359; Greely «. Bartlett, 1 Grcenl 172- Ran' 
 
 V. Maddox, 29 Ga. 285 ; Sherrod v. Langdon, dall v. Kehlor, CO Me. 37 ; Goodenow » 'lyler 
 
 21 Iowa, 518; Post v. Kimberly, 9 Johns. 470; 7 Mass. 36; Upton v. Suffolk Mills 4 Cush' 
 
 Potter V. Greene, 9 Gray, 309 ; Rice v. Bar- 586 ; Day v. Holmes, 103 Mass. 306; VVillard v 
 
 rett, 116 Mass. 314; Gushing «. Smith, 43 Buckingham, ;i6 Conn. 395; Daylio-ht-Burner 
 
 Texas, 261 ; In re Jcwctt, 15 Nat. Bank. Reg. Gas Co. v. Odlin, 51 N. H. 56 ; McKinstry ![ 
 
 ; „ „ ft T, <,,, Pearsnll, 3 Johns. 319 ; Smith v. Tracy, 86 . 
 
 : 'i^^^- V' I' . ^ ■ ^ '^'' Koscnstock V. Tormey. 32 Md. 169; 
 
 And see Benedict v. Dav.s, 2 McLean, 34S. American Central Ins. Co. v. McLanathan, 1 
 
 Ex parte Mat hews, 3 Ves. & Bea. 125. Kan. 533. And see Russell v. Hankey 6 
 
 ' Young «. Axtell, 2 H. Black. 242; Mc- Term Rep. 12; Belcher v. Parsons Imb. 
 
 Na,nara v Dratt 33 Iowa, 385. 219; CaiTrey .. Darby, 6 Ves. 496 Massey , 
 
 « Tumlini,. Goldsmith, 40 Ga. 221 ;W.->lcott Banner, 1 Jac & W 241 ai^bey 1.. 
 
 •). C'anlleld, 3 Conn. 195. ... 
 
PIUNCIPAL AND AGENT. 285 
 
 Usage as to Execution of Agency. 
 
 cipal except in the manner recognized by the cnstom of the trade. In a Penn- 
 sylvania case, S. gave orders to R., in the employ of W., abrolier in Pittsburg, to 
 buy five hundred barrels of oil; the order was telegraphed to W.'s house in 
 Philadelphia, who telegraphed in reply: "We have bought, subject to immediate 
 confirmation, 500 barrels." R., not knowing the seller's name, immediately 
 replied: " We hereby confirm purchase," signing S.'s name, but not having had 
 any further communication with S. On the next day R. received the seller's 
 name and sent it to S., who, not being satisfied with his standing, refused him, 
 and refused to sign a contract or accept the oil. It was proved that the custom 
 of oil dealers was that the seller's name must be submitted to the principal for 
 confirmation, and that when names were given and rejected the sale failed. The 
 court held that there was no evidence of a contract on which the seller could 
 recover from S.; that the broker could not bind his principal except in the 
 manner recognized by the custom; and that R.'s confirmation was without 
 authority.^ Hodgson v. Davies,^ tried before Lord Ellenbokough in 1810, was 
 an action for not delivering tobacco sold by the defendant to the plaintiff by bill, 
 through the medium of a broker. The defence relied upon was that the defend- 
 ant had not ratified the contract entered into by the broker. On the 7th of July, 
 1808, the broker wrote out the bought-and-sold note, and sent a copy to each of 
 them. The defendant made no objection till five days after, when he was 
 called upon to deliver the tobacco, then saying that he was not satisfied with the 
 sufilciency of the purchaser, and refusing to perform the contract. The defend- 
 ant's counsel contended that the person who sold goods by a broker reserved 
 to himself the power of ratifying or rejecting the contract, as he should be 
 satisfied with the credit of the purchaser, and offered to prove that such was the 
 usage of trade in the city of London. Lord Ellbnboeough was at first 
 inclined to think that the contract concluded by the broker must be absolute 
 unless his authority was limited by writing, of which the purchaser had notice, 
 but the special jury found that unless the name of the purchaser had been pre- 
 viously communicated to the seller, if the paynient was to be by bill, the seller 
 was always understood to reserve to himself the power of disapproving of the 
 sufficiency of the purchaser and annulling the contract. Lord Ellbn-borough 
 then ruled that the usage was reasonable and valid. But he clearly thought that 
 the rejection should be intimated as soon as the seller had had time to inquire 
 into the solvency of the purchaser. Five days seemed to him a longer period 
 than the exigency of commerce would permit. He left it to the jury to say 
 whether it was according to usual commercial practice to reject a contract so 
 long after it had been entered into. The jury considered that five days was too 
 long, and found for the plaintiff. And it seems that if an agent conducts his 
 business according to the usages of the trade he will be exonerated from all 
 responsibility, 6ven if It could be shown that by a deviation from them he might 
 have acted more beneficially for his principal.' And as to the incidental powers 
 of agents, it may be stated, generally, that they result from the particular busi- 
 ness, employment, or character of the agents themselves. "Whatever acts," 
 
 > Sumner». Stewart, 69 Pa. St. 321. 188,noteo; Warwickea.Noakes.PeakeN.P. 
 
 2 2 Camp. 530. 88; Russell ». Hankey, 6 Terni Eep. 12; 
 
 3 Story on Ag., § 96; Moore v. Mourgue, Belcher ii. Parsons, Amb. 219. 
 Cowp. 480; Smith v. Cologim, 2 Term Rep. 
 
Jibti IX UIFFEKENT RELATIONS AND OCCUPATIOiNS. 
 
 Principal and Agent. 
 
 says Story,' " are usually done by such classes of agents, whatever rights are 
 usually exercised by them, and whatever duties are usually attached to them, 
 all such acts, rights, and duties are deemed to be Incidents of the authority 
 confided to them in their particular business, employment, or character. These, 
 Indeed, are in some cases so well known and so well defined in the common 
 negotiations of commerce and by the frequent recognition of courts of justice, 
 as to become matters of legal intendment and inference, and not to be open for 
 inquiry or controversy. In other cases, indeed, they may be fairly open as 
 matters of fact, to be established by suitable proofs." Mr. Wharton states the 
 rule very concisely thus : " Each particular kind of brokerage must take its type 
 from the usages of the business with which it deals. A. wants to sell cotton, for 
 instance, and B. wants to buy cotton, and C. is the broker through whom the 
 one buys and the other purchases. But how? As will presently be seen, the 
 contract is reduced to a few words, representing a transaction which rests upon 
 the usage of the particular business, and that usage would be part of the con- 
 tract, should that contract be written out in full. It is not written out in full, 
 being only the notes of a contract incorporating this usage. Hence it is that 
 when the contract to which the broker binds the parties is under investigation, 
 it is admissible, in order to show what the contract was, to prove a usage of the 
 particular business, so far as this usage is fair and reasonable." ' 
 
 § 143. Authority ol Agent. — Authority given to a general agent cannot be 
 limited by secret instructions so as to affect third parties dealing with him.' 
 But what his authority really is, and the limits of that authority in special cases, 
 will be found to depend in no small degree upon the custom of the trade he 
 follows, or of the place in which his business is transacted. Many cases recog- 
 nize this principle,' whose application will be better seen in the next few sections. 
 
 The authority of an agent to sign and Indorse negotiable paper may be 
 inferred, even where no express authority existed, from the usage of the agent to 
 make such paper with the knowledge and assent of the principal.' But authority 
 to sign as maker or surety cannot be inferred from a general usage to indorse.' 
 
 » Story on Ag., § 106. Watts 4 S. 402; Fay v. Richmond, 43 Vt 25; 
 
 2 Whart. on Ag., § 696. And see Rapp v. Dingle v. Hare, 7 C. B. (N. s.) 145; Noblebora 
 Grayson, 2 Blackf. 130; Sumner v. Stewart, v. Clark, 68 Me. 87; Haven v. Vfentworth, 2 
 69 Pa. St. 321; Kraft v. Fancher, 44 Md. 204; N. H. 93; Morris v. Bowen, 52 N. H. 418; An- 
 Colket V. Ellis, 10 Phila. 375. derson v. Kneeland, 6 Cow. 354 ; Tlie Hendrik 
 
 3 McCombiec. Davies,6East,528; Patter- Hudson, 7 Law Eep. (N. 8.) 93; Wilcooks v. 
 son V. Tash, 2 Stra. 1178 ; Pickering v. Bush, Phillips, 1 Wall. jr. 47 ; McMorris v. Simpson, 
 15 East, 38; Allen „. Ogden, 1 Wash. C. Ot. 21 Wend. 610; Easton v. Clark, 35 N. Y. 232; 
 174; Bryant v. Moore, 26 Me. 84; Filzsim- White v. Puller, 67 Barb. 267; Bucknam D. 
 raons V. Joslin, 21 Vt. 129; Minter v. I'aciflc Chaplin, 1 Allen, 70; Goldsmith v. Manheim, 
 R. Co., 41 Mo. 603; Duke of Beaufort v. 109 Mass. 187; Greenfield Bank v. Crafts, 2 
 Neeld, 12 CI. & Fin. 290; Fitzherbert v. Allen, 269; Corbett». Underwood, 83 III. S24; 
 Mather, 1 Term Rep. 12; Johnson v. Jones, United States Lite Ins. Co. v. Advance Co., 
 4 Barb. 369; Whitehead v. Tuckett, 15 East, 80 111. 549; Oldershaw v. Knoles, 4 Bradw. 
 400 ; Fenn v. Harrison, 3 Term Rep. 757. 63 ; ». c. 6 Bradw. 325 ; Rich v. Johnson. 61 111. 
 
 < Whitehead v. Tuckett, 15 East, 400; 246 ; Wallace ». Bradshaw, 6 Dana, 382. 
 Barnes ,;. Ewing, L. R. 1 Exch. 320 ; Dickin- <■ Moore v. Bank of the Metropolis, 13 Pet. 
 
 son V. Lilwall, 4 Camp. 279; Hammond v. 302; True ». True, 33 Me 367 
 Varian, 64 N. Y. 393; Green «. Disbrow, 7 » Early ». Beed, 6 Hill 12 
 
 Lans. 381; 56 N. V, ;«(!; Brown v. Arnott, 6 
 
PRINCIPAL AND AGEKT. 2H7 
 
 Usages of the Stock Exchange. 
 
 A general selling-agent cannot bind his principals by a warranty that flour sold 
 by him for them will keep sweet during a sea-voyage, no usage to that effect 
 being proved.^ Authority to remit to his principal by bill," and for clerks of 
 steamboats to sign negotiable paper for the necessary expenses,' may be shown 
 by evidence of custom ; and the usage of mercantile houses may be proved to 
 show that a clerk had no authority to make certain contracts.* So, a substitute- 
 broker may be shown, by the custom of the occupation, to warrant that the 
 persons offered by him are not -defaulters.' But a general usage among horse- 
 dealers not to warrant under certain circumstances cannot be set up to defeat a 
 warranty by a servant having an implied authority So to do.* 
 
 § 144. Usages of the Stock Exchange. — The rule that the parties are pre- 
 sumed to agree that a mercantile agency shall be exercised according to the 
 usages of the trade, is supported by many cases which have arisen on the Eng- 
 lish Stock Exchange. A few instances will suffice. A., a stock-broker, sold for 
 B. four bonds, and paid him the amount; the bonds were afterwards discovered 
 to be worthless, whereupon A. took them back without notice to B., and reim- 
 bursed the purchaser. The custom of the Stock Exchange permitting this, A. 
 was allowed to recover the amount from B.' Again: A. authorized B. to sell for 
 him twenty railway-shares. B. sold them to C, another broker. The shares 
 not being delivered on that day, C. bought twenty other shares at the market 
 price, and claimed the difference between the contract price and the market 
 price. B. paid him the difference, and brought an action for money paid, to 
 recover this sum. It was proved to be the usage among brokers to be respon- 
 sible to each other upon these contracts, and B. was therefore held liable.* 
 Again : A., a broker and member of the Stock Exchange, on August 28, 1856, at 
 the request of B., bought for him twenty shares of bank stock, to be paid for on 
 the " settlement day," which was on September 15th, and duly forwarded him the 
 usual broker's contract note. The bank stopped payment on September 3d, and 
 ultimately became bankrupt. On the 11th B. repudiated the transaction, and 
 gave A. notice not to pay the price on his account. A. having been compelled, 
 according to the rules of the Stock Exchange to pay for the shares on the settle- 
 ment day, sent B. the certificates and transfers, and upon his declining to accept 
 them, sued him for the money, and it was decided that he was entitled to 
 recover.' Again : B., a London merchant, employed A., a broker in Liverpool, 
 to purchase some wool. A. negotiated a sale by C. to A. of certain bales, deliv- 
 erable at Odessa, " the name of the vessel to be declared as soon as the wools 
 were shipped." In this transaction A. acted for both B. and C. By the custom 
 of Liverpool, where a contract contained a stipulation that notice of an event 
 should be given by the vendor to the vendee, it was usual for the vendor to give 
 the notice to the broker, who communicated it to the vendee. It was held in 
 
 1 Upton V. Suffolk County Mills, 11 Gush. ' Young v. Cole, 3 Bing. N. C. 724; Child v. 
 587; Wiltshire v. Sims, 1 Camp. 258. Morley, 8 Term Rep. 610. 
 
 2 Potter V. Morland, 3 Cush. 384. 8 Bayliffe v. Butterworth, 1 Exch. 426. 
 
 > Mott V. Hall, 41 Ua. 117. » Taylor v. Stray, 2 C. B. (N. s.) 175. And 
 
 * Jones V. Warner, 11 Conn. 40. see Sutton v. Tatham, 10 Ad. A E. 27; Smith 
 ' Lebanon t). Heatli, 47 N.H. 353. ». Lindo, 5 C. B. (N. s.) 687; Stray v. Rus- 
 
 • Howard «. Sheward, L. R. 2C. P. 148. soli, 29 L. J. (Q.B.) 279; Lloyd d. Gilbert, 25 L. 
 
 J. (Q. B.) 74. 
 
288 IN DIFFERENT RELATIONS AND OCCLPATIONS. 
 
 Principal and Agent. 
 
 this case, both In the Court of Exchequer and the Exchequer Chamber, that B. 
 was bound by the usage, and that a notice by C. to A. of the names of the 
 vessels on which the wools were shipped was a performance of that stipulation, 
 although A. omitted to communicate them to C Again: A. employed B., a 
 broker, to sell two hundred and fifty shares in a company. On the day after 
 receiving the authority B. sold one hundred and nine shares, and on the follow- 
 ing day one hundred more. On the latter day, butafter the sale, A. told B. that he 
 had made a mistake, and intended to sell only fifty shares, and was told that the 
 sales could not be avoided. A. left the matter in B.'s hands, to do the best he 
 could. By the usages of the Stock Exchange, if, upon a sale of this description, 
 the vendor was not prepared to complete his contract, the purchaser might buy 
 the requisite number of shares, and the vendor was bound to make up the loss, 
 if any. The purchaser in this case having bought at a loss, B. paid the differ- 
 ence, and then sued A. in assumpsit for money paid. He was allowed to recover.' 
 These cases, and others cited below, show the law to be well settled that when a 
 contract for the purchase or sale of shares has been entered into between 
 individuals through their respective brokers, or with the intervention, as pur- 
 chasers or sellers, of jobbers, members of the Stock Exchange, the lawful usages 
 and rules of the Stock Exchange are incorporated into and become part and 
 parcel of all such contracts, and the rights and liabilities of individuals, parties 
 to any such contracts, are determined by the operation upon the contracts of 
 these rules and usages.' 
 
 § 145. Delegation of Agrent's Authority. — The maxim, Delegata potestai 
 non potest delegari, expresses an important principle in the law of agency.* 
 One who has authority from another to do an act must execute it himself, and 
 cannot delegate his authority to another ; for, being a confidence or trust reposed 
 in him personally, it cannot be assigned to a stranger, whose ability and integrity 
 might not be known to the principal, or, if known, might not be selected by him 
 
 > Greaves v. Legg, 11 Exch. 6i2; 2 Hurl. & 301 ; Doe v. Bobinson, 3 Bing. N. C. 677; Cat- 
 
 N- 210. lin V. BcU, 4 Camp. 183; Walsh v. South- 
 
 a Sutton V. Tatham, 10 Ad. & E. 27. worth, 6 Exch. 166 ; Wilson v. Thorpe, 6 Mee. 
 
 » Evans on Ag., chap. 2, § 2; Robinson p. & W. 721; Little v. Newton, 2 Scott N. E. 
 
 Mollett, L. B. 7 H. L. 802; Maxted v. Paine, 609; Great Nortliern R. Co. v. Eastern Coun- 
 
 I* E. 4 Exch. 210 ; Taylor v. Stray, 2 C. B. ties B. Co., 6 El. & Bl. 327 ; Warner v. Martin, 
 
 (N. 8.) 175; Smitho.Lindo.eO. B. (K. S.)587; 11 How. 209; Bocook u. Pavey.SOhio St.270; 
 
 Pidgeon v. Bnrslera, 3 Exch. 465 ; Rosewarne Gillis v. Bailey, 1 Fost. 149 ; Hawley v. James, 
 
 V. Billing, 15 0. B. (N. 8.) 316; Jessopp v. Lut- 6 Paige, 323 ; Locke's Appeal, 72 Pa. St. 491; 
 
 wyohe, 10 Exch. 614; Knight v. Chambers, 16 Lyon v. Jerome, 28 Wend. 435 ; Emerson v. 
 
 C. B. 562; Beeston v. Beeston, 1 Exch. Dlv; Providence Hat Co., 12 Mass. 241; Ex parte 
 
 13; Bowring v. Shepherd, L. B. 6 Q. B. 309; Winsor, 8 Story, 411; Smith v. Sublett, 28 
 
 Grissell «. Bristowe.L. E.4 0. B. 36; Coles Texas, 163; Bissell v. Boden, 84 Mo. 63; 
 
 V. Bristowe, L. B. 4 Ch. 3; Duncan v. HiU, Loomis o. Simpson, 13 Iowa, 632. "A factor 
 
 L. B. 6 Exch. 255 ; L. E. 8 Exch. 242. cannot delegate his employment to another 
 
 < Burial Board v. Thonipson, L. E. 6 0. P. so as to raise a privity between that other 
 
 467; Baker «. Cave, 1 Hurl. * N.e78; Alex- and his principal." Solly v. Eathhone, 2 
 
 ander v. Alexander, 2 Ves. 640; Ingram ti. Mnu. & Sel. 299; Cockran ». Irlam, 2 Mau. & 
 
 Ingram, 2 Atk. 88; Hamilton v. Boyse, 2 Sch. Sel. 301. The reason of the rule is, that it 
 
 & Lef. 330; Attorney-General v. Benjamin, 2 is a trust and confidence reposed in the iibil- 
 
 Ves. 643 ; Hawkins v. Kemp, 3 East, 410 ; Cole Ity and integrity of the person authorized. 
 
 V. Wade, 16 Ves. 27 ; Howes v. Ball, 7 Barn. & Warner ii. Martin, 11 How. 209. 
 Cress. 481; Cockran v. Irlam, 2 Mau. & Sel. 
 
PKINCIPAL AND AGKNX. 289 
 
 Sales on Credit. 
 
 for such a purpose.' To the general rule that power given to one person to do 
 an act cannot be delegated to another, there are many exceptions ; " but it is 
 important here to note only that usage may change a case which otherwise would 
 be governed by this maxim. In one case, it is true, it was remai-ked by Lord 
 Bldon that " the doctrine is very dangerous, indeed, that if an auctioneer is 
 authorized to sell, all his clerks, when he goes out of town, are, in consequence 
 of any usage in that business, agents for the person who authorized him."> 
 But in Moon v. Ouardians of the Poor,* a custom, in the case of an architect, to 
 «mploy a surveyor to make out the quantities of a building proposed to be 
 erected was held valid, so as to render the employers of the builder liable to the 
 surveyor for his work. "The jury found," said Tindal, C. J., "that there 
 was a usage in the trade for architects or builders to have their quantities made 
 out by surveyors. * * * it appeared that the custom is beneficial to the 
 parties concerned; that if builders are not assisted by surveyors they send in 
 tenders which lead to loss and inconvenience from a mistake in the quantities." 
 BosANQUET, J., said: "The jury must be taken to have found that what has 
 been done was done consistently with the usage of the trade. It has been con- 
 tended that architects are employed only to draw plans, and not to make out 
 quantities, but the defendants knew that the quantities were to be made out by 
 somebody, and that if the work proceeded the surveyor was to be paid by the 
 successful competitor; and the jury have said that the architect, in employing a 
 surveyor, acted according to the usage of the trade." Similarly, in Gray v. Mur- 
 ray,^ Chancellor Kent allowed a supercargo to recover for services performed 
 by subordinates appointed by him on account of his sickness, the decision being 
 expressly placed on the usage of the trade in such cases. In a subsequent 
 Alabama case, the court, while deciding, on the facts in the case, that the delega- 
 tion was unauthorized and not binding, admitted that the custom of the trade 
 might, if proved, have changed the result.' But it has been held in Indiana that 
 a local custom authorizing a factor, in his discretion, without the assent or 
 knowledge of his principal, to ship goods intrusted to him for sale iij his own 
 market, to a factor of his own choosing, unknown to his principal, at his prin- 
 cipal's risk, and in case of loss without any responsibility on himself, is unrea- 
 sonable and void.' 
 
 § 146. Power to sell on Credit. — It was laid down by Lord Chief Justice 
 Hoi-T in Bex v. Lee,' decided in 1701, that " every factor, of common right, is to 
 sell for ready money." Mr. Wharton states it as the general rule of law that a 
 factor must sell for cash ; ' and Chancellor Kent has expressed hims'elf to this 
 
 1 Johnson o. Cunningham, 1 Ala. 249. 1 Oush. 177; Williams v. Woods, 16 Md. 220; 
 
 ' Howard v. Bailie, 2 H. Black. 618 ; Bar- Commercial Bank v. Norton, 1 Hill, 501. 
 
 nett V. Lambert, 15 Mee. & W. 489; Quebec, » Coles ». Trecothick, 9 Ves. 250. 
 
 etc., K. Co. e. CJuinn, 12 Moo. P. C. C. 265; * 3 Bing. N. C. 814. 
 
 Howard's Case, L. R. 1 Ch. 561; Totterdell v, ^3 Johns. Ch. 167. 
 
 Pareham Brick Co., L. E. 1 C. P. 674; Smith ' Johnson ti. Cunningham, 1 Ala. 249. And 
 
 V. Boutcher, 1 Car. & Kir. 673; Trueman v. see Darling v. Stanwood, 14 Allen, 604. 
 
 Loder, 11 Ad. & B. 689 ; Laussatt v. Lippin- ' Wallace v. Morgan, 23 Ind. 399. 
 
 cott, 6 Serg. & E. 386; Gray v. Murray, 3 « 12 Modern, 611. 
 
 Johns. Ch. 167; Bodine ». Insurance Co., 51 » Whart. on Ag., § 740; 2 Kent's Comm. 
 
 N. Y. 117 ; Buckland v. Conway, 16 Mass. 398 ; 
 Dorchester, etc., Bank v. New England Bank, 
 
 19 
 
290 IN UliTKKENT KELATIOJSS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 effect most unequivocally. It is perhaps more correct to say, with Stoky,' 
 that the right of a factor to sell upon credit, although formerly a fact to be 
 ascertained by nsajie, is now treated as an undeniable principle of law, and 
 incidental to the agency, in the absence of all contradictory proofs.' In Qoodenow 
 V. Tyler,^ a custom in Boston, where the sale was effected, for factors to sell on 
 credit at the risk of their principals, unless an additional premium was allowed 
 for taking the risk upon themselves, was recognized; and one who, having 
 goods consigned to him, sold on three months' credit, taking in payment the 
 purchaser's promissory note to himself, and the purchaser afterwards became 
 Insolvent, was held not liable for the value of the goods.* 
 
 § 147. Power to pledge Goods. — That a factor cannot pledge the goods of 
 his principal for his own debt, seems to be too well settled to admit of a doubt.* 
 "Though a factor," says Chaacellor Kent, "may sell and bind his principal, 
 he cannot pledge the goods as a security for his own debt. The principal may 
 recover the goods of the pawnee, and his ignorance that the factor held the 
 goods in the character of an agent is no excuse." ^ The rule, in the absence of 
 a contrary statute, seems to be as well settled a rule as any in the books, sup- 
 ported as it is by the text-writers and by a host of adjudications both in this 
 country and in England.' But Judge Story, after unqualifiedly lajing down the 
 rule as before stated, adds that he may pledge the goods of a principal for all 
 charges and purposes " which are allowed or justified by the usage of trade." * 
 And Mr. Wharton says : ' " Yet, even while professing to accept this principle, — 
 i.e., that the factor cannot pledge, — the courts, feeling its inconvenience, were 
 ready to modify it by compelling it to yield to local usage." There are cases in 
 the books in accordance with these views, but they are few. Lord Eldon, in 
 Pultney v. Keymer,'" was apparently inclined to this mode of avoiding the strict- 
 ness of the common-law rule ; but Pultney v. Keymer has since then been both 
 criticised and expressly overruled." Had such a usage been shown in Graham 
 V. Dyster,^' decided by Lord Ellbnborough in 1816, the liability of the factor 
 
 > Story on Ag., § 209. v. Duval, 5 Term Rep. 604 ; G&ichard e. Mor- 
 
 2 Goodenow v. Tyler, 7 Mass. 36; 6 Am. gan, 4 J. B. Moo. 36. 
 Deo. 22; Alen v. Vandorpool, 6 Johns. 69; » 2 Kent's Com m. 626. 
 
 5 Am. Dec. ]60; Forrestier v. Bordman, 1 ' Story on Ag., § 113; Wharton Ag.,§ 753; 
 Story, 43; Emery v. Gerbier, 2 Wash. C. Ct. Boyson v. Coles, 6 Mau. & Sel. 14; Rodri- 
 413; James d. McCredie, 1 Bay, 297; BuniU guez v. Heffeman, 5 Johns. Oh. 429; Ban- 
 V. Phillips, 1 Gall. 360; Greely v. Bartlett, 1 ny v. Rhodes, 18 Mo. 147 ; Kelly v. Smith, 1 
 Greenl. 173; Houghton v. Matthews, 3 Bos. Blatchl. 290; Evans v. Potter, 2 Gall. 13; A'an 
 
 6 Pul. 4S9; Leach o. Beardslce, 22 Conn. Amringe o. Peabody.l Mason, 440; Michigan 
 404 ; Ilai-bei-t v. Neil, 49 Texas, 143 ; Neill v. State Bank v. Gardner. 15 Gray, 362 ; Macliay 
 Billingsley, 49 Texas, 161; Dwight v. Whit- v. Dillinger, 73 Pa. St. 85; Kinder v. Shaw, 2- 
 ney, 16 Pick. 179. Mass. S98 ; Bowie v. Napier, 1 MoOord, 1. 
 
 3 7 Mass. 36; 5 Am. Dec. 22: ante, p. 180. « Story on Ag., § 113. 
 
 * And see Chandler v. Hogle, 58 111. 46; • Whart. on Ag.,§ 762. 
 
 Rich V. Munroe, 14 Barb. 602 ', Johnston ». >« 3 Esp. 182. 
 
 Ueborne, 11 Ad. & E. 549. ii See Solly v. Bathbone, 2 Mau. & Sel. 298, 
 
 » Laussatt V. Llppincott, 6 Serg. & R. 386; Cockran v. Irlam, 2 Mau. & Sel. 301, note;. 
 
 Warner v. Martin, H How. 220; Patterson ». Shipley ti. Kymer, 1 Mau. So Sel. 484; Martini 
 
 Tash, 2 Stra. 1178; Macus v. Henderson, 1 v. Coles, 1 Mau. & Sel. 140; Quoroz v. Tru- 
 
 East, 337; Newson v. Thornton, 6 East, 17; man, 3 Barn. & Cress. 342; Boysou v. Coles, 
 
 MoCombie ». Duvios, 6 East, 538; Daubigny 6 Mau. & Sol. 14. 
 
 's 2Stark. N.P. 21. 
 
PRINCIPAL AND AGENT. 291 
 
 Payment to Agent. 
 
 might have been differeftt, though such a conclusion is not certain, the opinion 
 being far from clear upon this point. The case of Newbold v. Wright,^ which in 
 1833 came before the Supreme Court of Pennsylvania, is often cited as an 
 instance of a usage of trade changing the law as to a factor's power to pledge. 
 The opinions in that case are very lengthy, but the syllabus to the report reads 
 thus: "A usage cannot be set up in opposition to a general rule of law; there- 
 fore, a usage for factors to pledge the goods of their principals is bad." And 
 Rogers, J., who delivered the opinion of the court, said of the custom set up 
 at the trial: " It would be of pernicious consequence to the commercial world 
 to recognize such a custom so proved, made for the benefit of a few, opposed 
 as it is to the general mercantile law. It is an attempt to set up a custom in 
 opposition to a general principle of law, which cannot be permitted." It may 
 be observed, however, that one judge dissented from the rest of the court, and 
 apparently favored the admission of the custom. But in Laussatt v. Lippincott,' 
 where one to whom goods were delivered by his principal to ^ell, deliver, an-J 
 receive payment, deposited them with a commission merchant connected in, 
 business with a licensed auctioneer, who advanced his notes thereon, it was 
 held that this transaction bound the principal, the jury having found that this 
 was in accordance with the usage of the trade. Tilghman, C. J., admitted the 
 general rule of law to be against the defendant, saying: "That a factor can- 
 not pledge the goods of his principal for his own debt, seems to be too well 
 settled to admit of a doubt." ^ But he added : " Now, the jury have found that 
 in the ordinary course of business in this city, merchandise-brokers make sale 
 of the goods of the principal in the manner in which this coffee was sold. 
 Therefore, when the plaintiff trusted a well-known merchandise-broker vnth the 
 possession of his goods for the purpose of sale, he impliedly gave him power to 
 sell in the manner in which he sold ; or, to speak with more strict propriety 
 (though the jury call it a sale), the manner in which he deposited for the purpose 
 of sale." This case was cited to the court in Newbold v. Wright, but without 
 changing the decision of the court upon the main question. 
 
 § 148. Insurance oi Goods in Hands of Agent. — An agent is bound to insure 
 the goods of his principal, not only where he has agreed to,* and where the 
 established rules of law require him to do so,= but likewise where the general 
 usage of trade requires it.' 
 
 § 149. Pasrment to Agent. — A payment of money due to the principal, made 
 to an agent duly authorized to receive it, is a payment to the principal, and will 
 
 ' 4Rawle, 195. ' Story on Ag., 5 190; Kingston ». Wilson, 
 
 « 6 Seig. & E. 386. 4 Wash. C. Ct. 15; De Porest v. Fulton Fire 
 
 ' Oiting Patterson v. Tash, 2 Stra. 117J>; Ins. Co., 1 Hall, 114; Crosbie v. McDonal, 
 
 Wright «. Campbell, 4 Burr. '2046; Piokenug 13 Ves. 138; Randolph v. Ware, 3 Cranoh, 
 
 V. Bust, 15 East, 43. 503 ; Thome v. Beas, 4 Johns. 101; Crawford 
 
 * Story on Ag., § 190; Tickel v. >fi >rt, 2 v. Hunter, 8 Term Rep. 13; French v. Back- 
 
 Vee. 239; White D.Madison, 26 N.Y ill. house, 5 Burr. 2727; Columbus Ins. Co. r. 
 
 ' Smith V. Lasoelles, 2 Term Hep. 189; Lawrence, 2 Pet. 49; Lee i>. Adsit, 37 N. Y. 
 
 Berthoud v. Gordon, e La. .'j7!i; Morris v. 87; Tongee v. Kennett, 10 La. An. 800; Col- 
 
 Summerl, 2 Wash. C. Ct. 203; Wallace ti. lings v. Hope, 3 Wash. C. Ct. 119; Walsh v. 
 
 Telfair, 2 Term Rep. 188 : y'ltMioh v. Reid, 6 Frank, 19 Ark. 270. 
 
 Binn. 308; De Tastet v. (.i uusillat, 2 Wash. 0. 
 
 Ct 132. 
 
292 IN DIFFJiKEXT KELATION8 AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 discharge the debt.' But one employed to sell for a known principal has not, 
 from that fact" alone, authority to receive payment, and the law does not raise 
 such a presumption to protect an innocent payment to such an agent.* It has 
 been held in New York that where an agent has not, by the established rules of 
 law, an implied authority to receive payment, such an authority cannot be shown 
 by a local usage allowing such an agent to receive payment for his principal.' 
 
 On the other hand, in respect to a debt due in the ordinary course of business, 
 a payment made to one found in the creditor's office, and apparently intrusted 
 with the conduct of the business, will bind the person to whom it is due. 
 " If it did not," said Lord Tentekdbn, C. J., " the consequences would be very 
 serious. In a great place of business like this, [London] no transactions could 
 be carried on if it were not sufficient for a purchaser to send his money to the 
 seller's place of business, and pay it to any person whom he finds there, whether 
 actually authorized to receive it or not, who appears to be Intrusted with the 
 conduct of the business. The debtor has the right to suppose that the trades- 
 man has the control of his own premises, and that he will not allow persons to 
 come there and intermeddle in his business without his authority." * Payment of 
 a debt being only good In money, the usage of attorneys for collection to receive 
 in depreciated bills of a State bank debts due their clients is contrary to law, and 
 Inadmissible.* 
 
 §150. Payment — Set-oH. — The factor, unless authorized by his principal, 
 cannot set off his private debt to the vendee against the vendee's debt on the 
 sale; and the principal will not be bound by such a transaction.* An agent 
 employed to receive a debt must take payment only in money.' Nevertheless, it 
 has been ruled in several cases that where a broker or other mercantile a^ent 
 has been employed to receive money for another in the general course of his 
 business, and where the general course of business is for the agent to keep a 
 running account with the principal, and to credit him with sums which he may 
 have received by credits in account with the debtors, with whom he also keeps 
 
 1 Faveno v. Bennett, 11 East, 3S; Baring 6 West v. Ball, 12 Ala. 340. 
 
 V. Come, 2 Barn. & AW. 137; Goodland v. « Whart. on Ag., § 741; VVestwood v. BeU, 
 
 Blewith, 1 Camp. 477; Coates v. Lewes, 1 4 Camp. 349 ; Turner ». Thomas, L. B. 6 C. P. 
 
 Camp. 444; Barrett v. Deere, Moo. &M. 200; 610; Dresser v. Norwood, 17 C. P. (N. s.)466; 
 
 Henry v. Marvin, 3 E. D. Smith, 71 ; Renard Miller v. Lea, 35 Md. 396 ; Lime Book Bank 
 
 V. Turner, 42 Ala. 117; Capel v. Thornton, 3 v. Plimpton, 17 Pick. 159; Guy v. Oakley, 13 
 
 Oar. & P. 352; Pickering ». Busk,, 15 East, 38; Johns. 332; Stewart ». Aberdein 4 Mee & 
 
 Cross V. Haskins, 13 Vt. 536; Hackney v. W.224; 2 Ivenfs Coram. 622; Underwood «. 
 
 Jones,3 Humph. 612; Pinckney v. Hagadorn, Nichols, 17 C. B. 239; Sweeting v. Pearce, 7 
 
 J Duer,89. C. B. (N. s.) 449; s. o. 9 C. B. (N. s.) 534; 
 
 f Baring».Con-ie,2Barn. &Ald. 138;-Ire- Warner v. Martin, U How. 209; Benny v. 
 
 land V. Thomson, 4 C. B. 149; Mynn v. Jol- Pegram, 18 Mo. 191; Beach «. Forsyth, 14 
 
 Iiffe, 1 Moo. & R. 326; Morris v. Cleasby, 1 Barb. 499; Bartlett v. Pcntland, 10 Barn. & 
 
 Mau. & Sel. 576; Whiton v. Spring, 74 N. Y. Cress. 760; Scott v. Irving, 1 Barn. & .\dol. 
 
 169. 
 
 605. 
 
 3 Higgins V. Moore, 34 N. Y. 417 (reversing v Barker v. Greenwood, 2 You. & Coll. 418 ; 
 
 «. c. 6 Bosw. 344). As to evidence of usage Bostick v. Hardy, 30 Ga. 836; Greenwood v. 
 
 to pay an agent, sec Helsch v. Carrlngton, 6 Burns, 50 Mo. .'i2; Mangura v. Ball, 43 Miss. 
 
 Car. & P. 471. 288; Cattcrall v. Hindle, L. E. 1 C. P. 186; 
 
 * Barrett v. Deere, Moo. & M. 200; Wilmot ». c. 2 C. P. 368. 
 V. Smith, Moo. & M. 238; Hudson v. Johnson, 
 1 Wash. 10; Branch v. Burnley, 1 Call, 147. 
 
PRINCl.AL AND AtENT, 2^3 
 
 — »— 
 
 Usage as to Agent's Compensation. 
 
 Tunning accounts, and not merely with money actually received, the rule laid 
 down in the foregoing cases cannot properly be applied, but it must be under- 
 stood that where an account is bona fide settled according to that known usage, 
 the originar debtor is discharged and the agent becomes the debtor.' In Massa- 
 chusetts it is recognized that in the usual and ordinary course of business a 
 factordoes not, and is not required to keep the money received upon the sale of 
 goods of different consignors in separate and distinct parcels, but mingles all in 
 a common mass, and with the like funds of his own, from whatever source 
 derived.' 
 
 A custom among stock-brokers to appropriate money belonging to their prin- 
 cipal to the payment of his broker's indebtedness is illegal. In Evans v. Wain, 
 Wain employed Markoe, a broker in Philadelphia, to sell stock. Evans, a 
 broker in New York, sold the stock by order of Wister, another Philadelphia 
 broker under Markoe, with the assent of Wain, without naming the owner; but 
 before the proceeds were remitted by Evans, Wister failed, in debt to Evans. 
 It was held, in the Supreme Court of Pennsylvania, that Evans could not retain 
 the debt from the proceeds, and that evidence that it was the custom of brokers, 
 in their dealings with brokers of other cities, to put all transactions between 
 them into one account and settle for the general balance, was not admissible. 
 "If there isa custom among stock-brokers," said Williams, J., " when dealing 
 with others, to appropriate money belonging to the principal to the payment of 
 his broker's indebtedness, the sooner it is abolished the better. Mains usus 
 abolendus est. A custom so iniquitous can never obtain the force or sanction of 
 law, and the marvel is that it should be set up as a defence to this action." ' 
 So, it has been held that a usage among factors to mix in one parcel the goods 
 of different consignors, and, upon a sale of the same, to charge the purchaser 
 with the same, and in some cases to take negotiable notes therefor and nego- 
 tiate the same as their own property, and in case of the failure of the pur- 
 chaser, to charge the consignor with the debt as a bad debt, would not prevent 
 a recovery Ijy a consignor who could trace his goods, or the proceeds thereof, 
 into the hands of the factor or his trustee.^ 
 
 § 151. The Agent's Compensation. — There being no express contract as to 
 the agent's compensation, usage may settle the amount,' though it was early 
 remarked by the courts that in many cases a special contract was better, as not 
 leaving the matter open to doubt and speculation.' A commission merchant's 
 charges may be shown to be reasonable, and not usurious, by proof of the 
 
 1 Stewart v. Aberdein, 4 Mee. & W. 211; Stark. N. P. 361; Avuiol v. Thomas, 2 Term 
 
 Catterall i>. Hindle, L. E. 2 O. P. 368 ; Sweet- Rep. 52; Read v. Rann, 10 Barn. & Cress. 
 
 ing V. Pearce, 9 C. B. (u. S.) 534 ; Warner v. 438 ; Baynes v. Fry, 15 Vcs. 120 ; Kuhlman v. 
 
 Martin, 11 How. 209; Scott v. Irving, 1 Barn. Brown, 4 Pick. 479; Power v. Kane, 5 Wis. 
 
 4Adol.605. 265; Barnard v. Adams, 10 How. 270; Dyer 
 
 - Vail V. Durant, 7 Allen, 409. v. Sutherland, 75 111. 580; Bcalc v. Creswell, 
 
 ' 71 Pa. St. 69. 3 Md. 196; Morgan v. Mason, 4 E. D. Smith, 
 
 < See also Farmers," etc., National Bank 636; Suydamo. WesMall, 4 Hill, 211; Hartjc 
 
 V. Sprague, 52 X. Y. 605. v. Collins, 46 Pa. St. 268; Edwards v. Gold- 
 
 ' Chesterfleld Man. Co. J). Dehon, 5 Pick. smith, 16 Pa. St. 43; Inslee v. Jones, 
 
 7; 16 Am. Dec. 367. Briglit. 76. 
 
 Eicke v. Meyer, 3 Camp. 412; Cohen v. ' Roberts v. Jackson, 2 Stark. N. P. 735. 
 
 Paget, 4 Camp. 96; Stewart v. Kohle, 3 
 
294 IN DIFFEREM RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 custom of the trade ; ' and a usage for the master of a vessel to have the freight 
 on money carried, as his own, and to be personally liable on such contracts, is 
 valid.' 
 
 Although, as a general rule, an agent on a paid salary cannot recover an 
 additional compensation for extra worli done by him,' still, vrhen a custom exists 
 to the contrary, such an allovyance may be made ; ' that is, if the party claiming 
 it can bring himself within the custom ; thus. A., claiming the usual commissions 
 of a brolier, must show that he is a broker, and the like.* But where there is 
 an express agreement between principal and agent, specifying the conditions 
 upon which commissions are to be allowed, it is not competent to show a usage 
 allowing commissions when these conditions are not complied with ; ' and where 
 the question was whether the compensation claimed by the directors of a corpo- 
 ration was reasonable, evidence of a custom in a number of other corporations 
 not to pay salaries or other compensation to directors for services was rejected. 
 In Bowcliffe v. Leigh,^ a horse-dealer brought a claim against the estate of a tes- 
 tator for charges connected with the purchase and sale of horses for the testator, 
 and for the keep of horses for several years. The executrix disputed the 
 amount charged, and alleged that the claimant had sold several horses, as agent 
 for the testator, on commission. The horse-dealer replied that he had' never 
 sold horses on commission as agent for the testator, but simply on the terms 
 that he should pay the testator a fixed sum for each horse, and sell it again on 
 his own account for what he pleased, retaining the difference, if any, as his 
 profit. It was held that evidence that this was the custom of all horse-dealers 
 of good standing was admissible in support of his claim. 
 
 §152. The Agent's OompenBation, continued — The Rules of Law as to, 
 cannot be overturned by tjsage. — There are two rules of law concerning the 
 agent's compensation which are well established. The first is, that profits made 
 by an agent out of the principal's property belong to the principal and not 
 to the agent; 9 the second is, that an agent of the owner to sell property cannot 
 be an agent for the purchaser as well, and receive pay from both.'" 
 
 1 Brown v. Harrison, 17 Ala. 774. burn, 3 Camp. 43 ; Turnbull v. Garden, 38 L. 
 
 2 Halsey v. Brown, 3 Day, 346. J. (Ch.) 331 ; Kimber v. Barber, L. K. 8 Oh. 66; 
 8 MarshaU v. Parsons, 9 Car. & P. 656; Prevost v. Gratz, 1 Pet. a Ct 364; Eobinson 
 
 Moreau v. Dumagene, 20 La. An. 230. „. Robinson, 1 De G. M. & G. 256 ; Campbell 
 
 « Ibid.; United States u.McDaniel, 7 Pet. v. Insurance Co., 2 IVhart. 64; Bartbolomew 
 
 1 ; United States v. Fillebrown, 7 Pet. 28. v. Leech, 7 Watts, 473 ; Norris' Appeal, 71 Pa. 
 
 ' Erben v. LoriUard, 2 Keyes, 567; Lyon St. 106; Oliver v. Pratt, 3 How. 333; Wiley's 
 
 V. Valentine, 33 Barb. 271. Appeal. 8 Watts & S. 244; Aokenburgh v. 
 
 Main V. Eagle, 1 E. D. Smith, 619. McCool, 36 Ind. 473; Lafferty v. Jelley, 32 
 
 ' Central Bridge Co. w. City of Lowell. 15 Ind. 471; Marvin v. Buchanan, 62 Barb.46S; 
 
 Gray, 106. Ijai„ „. Brown, 7 Lans. 506; Dutton v. 
 
 « In re Leigh's Estate, L.R. 6 Ch.Div. 256. Wilner,52N. Y. 313; Leake «. Sutherland. 35 
 
 »J .r' '■"""' ^''' "• I^«"0'>"""'. 1 Ves.ir. Ark. 319; Khea ». Puryear, 26 Ark. 344 ; White 
 
 289 ; Massey v. Davis, 2 Ves. jr. 317 ; William- v. Ward, 26 Ark. 44S ; Barton v. Moses, 32 111. 
 
 son B.Barbour, 37 L.T.(N.s.) 698; Morrison 50; Mason b. Bauman, 62 111. 76; Ely«.Han- 
 
 V Thompson L. R. 9 Q. B. 483; Barber v. ford, 65 111. 267; Denson v. Stewart, 15 La. 
 
 Dennis 6 Modern. 69; Anonymous, 12 Mod- An. 4,56; Clark v. Anderson, 10 Bush, 9L 
 
 em, 415; Rogers v. Boehm, 2 Esp. 703; '» Except he be a middleman, acting for 
 
 Franklin o. I. irth, 3 Bro.C.C.433; Traverse both parties with the knowledge and consent 
 
 iL Townsend, 1 Bro. C. C. 384; Thomson v. of both. Everhart v. Searle. 71 Pa. St. 256; 
 
 Ha^elock, l Camp. S27; Dlplock ,,. lUack- Rice ... Wood, 113 Mass. 133; Uoyd e. Col- 
 
PRINCIPAL AND AGENT. 295 
 
 Illegal Usages. 
 
 Both these rules the courts have refused to allow to be changed by proof 
 of a contrary custom. In Diplock v. Slackbum,^ the question was whether the 
 ■defendant had a right to the sum of £134 under the following circumstances: 
 The plaintiffs were the executors of the captain of a ship, of which the defendant 
 was the owner, and it appeared that when at the Cape of Good Hope the captain 
 had occasion to draw a bill upon England, on account of the ship, for the sum of 
 £1,500, and on account of the exchange at the time he received as premium the 
 «um of £134. The counsel for the plaintiffs contended that this money belonged 
 to the testator, and offered to call witnesses to prove that it was usual for the 
 captain of a ship, in such cases, to be allowed for his own benefit any advantage 
 arising from the state of the exchange. But Lord Ellenborough ordered a 
 nonsuit, saying: «'I am clearly of opinion that this premium belonged to the 
 ■owner, and not to the captain. If a contrary usage has prevailed, it has been a 
 usage of fraud and plunder. What pretence can there be for an agent to make a 
 profit by a bill upon his principal? This would be to give the agent an interest 
 against his duty. I believe that in this very way servants of the public abroad 
 have been guilty of enormous peculations. The testator was undoubtedly bound 
 to debit himself for the £134 as much as for any other sum of money he received 
 on the defendant's account." So, in a New York case it was held that a custom 
 among insurance agents that they are entitled to all dividends declared by 
 mutual companies, in lieu of other compensation, for effecting the insurance, was 
 bad. "No custom," said the court, "can be established which contravenes a 
 well-settled principle of law. It has been the settled doctrine of the courts, 
 both of law and equity, for centuries, that an agent cannot appropriate to his 
 own use any portion of the profits arising from the business of his principal. 
 The custom proposed to be established overrides this rule of law, and authorizes 
 the agent not to appropriate to himself a part only, but the whole of the profits 
 arising from the business of his principal. Such a custom needs only to be 
 stated to be repudiated. If tolerated, it would lead to the grossest abuses. 
 Insurance-brokers would be induced to become members of mutual insurance 
 ■companies; all property intrusted to them would be insured in these companies, 
 not infrequently without regard to expense, or even the responsibility of the 
 company, so that it should exist long enough to enable them to dispose of the 
 dividends which might be awarded to them. The rights of all the parties are 
 best secured by requiring the broker to charge such commissions as he may be 
 lairly entitled to, and permitting the customer to take whatever profits may be 
 earned in the course of the business." ' 
 
 In the case of Baisin v. Clark,' a usage of real-estate brokers in the city of 
 Baltimore to act for both parties in an exchange of real estate, and to charge a 
 
 «ton, 5 Bnsh, 587; Scribneri). Collar, 40 Mich. Barb. 217. See the English cases ot the 
 
 378; 8 Cent. L. J. 205 ; Kerfoot v. Hyman, 52 Great- Western R. Co. v. Cunlitfe, L. E. 9 Ch. 
 
 111. 612; Eapp v. Sampson, 16 Gray, 398; 525, and Baring ». Stanton, L. R. 3 Ch. Dlv. 502. 
 
 Walker ». Osgood, 98 Mass. 348; Lynch v. Of these oases it must be observed that it 
 
 Fallon, 11 R. I. 311; Lazarus v. Bryson, 3 was the principal's acquiescence, and not 
 
 Binn. 54; Ex parte Bennett, 10 Ves. 381; theagent'scustom, which prevailed with the 
 
 Schwartze v. Yearly, 31 Md. 270; Pugsley v. court. And see Brown v. Litton, 1 P. Wms. 
 
 Murray, 4 E. D. Smith, 245. 140; Jacques «. Edgell, 40 Mo. 78. 
 
 1 3 Camp. 43. ' 41 Md. 158, post, Chap. V. 
 
 ^ Minnesota Central B. Co. v. Morgan, 52 
 
296 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 commission to both, was held void. A similar custom among the brokers of 
 Boston was treated in the same way in Farnsworth v. Hemmer,^ decided by the 
 Supreme Judicial Court of Massachusetts in 1861, Bigblow, C. J., saying: "The 
 principle on which rests the well-settled doctrine that a man cannot become the 
 purchaser of property for his own use and benefit which is intrusted to him to- 
 sell, is equally applicable when the same person, without the authority or con- 
 sent of the parties interested, undertakes to act as the agent of both vendor and 
 purchaser. The law does not allow a man to assume relations so essentially 
 inconsistent and repugnant to each other. The duty of an agent for a vendor is- 
 to sell the property at the highest price ; of the agent of the purchaser, to buy it 
 for the lowest. These duties are so utterly irreconcilable and conflictiug that 
 they cannot be performed by the same person without great danger that the 
 rights of one principal will be sacrificed to promote the interests of the other, or 
 that neither of them will enjoy the benefit of a discreet and faithful exercise of 
 the trust reposed in the agent. As it cannot be supposed that a vendor and pur- 
 chaser would employ the same person to act as their agent to buy and sell the 
 same property, it is clear that it operates as a surprise on both parties, and is a 
 breach of the trust and confidence to be reposed in the agent by them respec- 
 tively, if his intent to act as agent of both in the same transaction is concealed 
 from them. It is of the essence of his contract that he will use his best skill 
 and judgment to promote the interest of his employer. This he cannot do where 
 he acts for two persons whose interests are essentially adverse. He is there- 
 fore guilty of a breach of his contract. Nor is this all. He commits a fraud 
 on his principals in undertaking, without their assent or knowledge, to act as- 
 their mutual agent, because he conceals from them an essential fact, entirely 
 within his own knowledge, which he was bound, in the exercise of good faith, to 
 disclose to them.' Such being the well-settled rule of law, it follows that the 
 evidence offered by the plaintiff was inadmissible. A custom or usage, to be 
 legal and valid, must be reasonable and consistent with good morals and sound 
 policy, so that parties may be supposed to have made their contracts with refer- 
 ence to it. If such a usage is shown to exist, then it becomes the law by which 
 the rights of the parties are to be regulated and governed. But the usage on 
 which the plaintiff relied was wanting in these essential elements. It would be 
 unreasonable, because, if established, it would operate to prevent the faithful 
 fulfilment of the contract of agency. It would be contrary to good morals and 
 sound policy, because it would tend to sanction an unwarrantable concealment 
 of facts essential to a contract, and operate as a fraud on parties who had a 
 right to rely on the confidence reposed in their agents." 
 
 Where A. had agreed to pay B. " twenty per cent upon all original or first- 
 year premiums collected and paid in by him," B. was not permitted to show 
 that, by the usage of the business, premiums were treated as " collected and paid 
 in " although, for the convenience of the assured, they were payable in subse- 
 quent instalments.' And a custom, when goods are consigned to merchants for 
 
 1 1 Allen, 494. a Kimball v. Brawner, 47 Mo. 398. And 
 
 ' Story on Ag., § 31 ; Copeland ti. Meroan- see Partridge v. Insurance Co., 15 Wall. 673;. 
 
 tile Ins. Co., 6 Pick. 198; Pugsley i>. Murray, Slagg »;. Insurance Co., 10 Wall. 5S9; ParkD. 
 
 4 E. D. Smitb, 24S; H&pp v. Sampson, 16 Piedmont, etc., Ins. Co., 48 Ga. 611. 
 
 Gray, 101. 
 
PKINCIPAL AND AGENT. 297 
 
 Disregard of Instructions not Excused by Usage. 
 
 sale, and again consigned by tliem to otliers to sell, for each house to charge a 
 commission of two and a half per cent, the usual commission for selling goods, 
 is void as against common reason and justice.' And so is a custom of factors, 
 to charge both commissions and interest on advances.^ But a well-established 
 custom among life-insurance companies and their agents as to the kind and 
 extent of pi'operty the agents may possess in the lists of policies they procure, 
 is, admissible to explain a contract between them.' And a usage by which the 
 seller of property is held liable to pay a commission to a broker whose services 
 he has accepted, and who has introduced him to, and brought him into nego- 
 tiation with an ultimate buyer, and who is ready to continue his services until a 
 sale is effected, is a reasonable one, in allowing a recovery for services accepted 
 and rendered, even though the, sale is finally effected by another broker.* So, in 
 an action on a promise to pay commissions to an insurance agent, evidence of a 
 usage of the trade to pay commissions only on premiums actually collected is 
 admissible.^ 
 
 In one case, vrhere the defendant, a ship-owner, was desirous of chartering 
 a vessel, and the plaintiff, a ship-broker, introduced him to A., another broker, 
 who introduced him to B., who made known to C. that the charter was wanted, 
 and through the negotiations of C. with the defendant, he chartered the vessel, 
 the plaintiff sued for commissions, alleging that the " introducing broker" was 
 entitled by custom to a share of the commissions. The plaintiff's counsel in the 
 case proposed to ask a witness the question, " What is the custom with regard 
 to payment of brokers' commissions where a broker introduces another broker 
 to a ship-owner, who subsequently negotiates with the broker introduced?" 
 but the evidence was rejected by Martin, B. In the Court of Exchequer his 
 ruling was affirmed. Said Pollock, C. B.: "A custom for one broker to be 
 paid for another broker's work may be good where there is a direct communi- 
 cation between the introducing broker and the principals ; but if a sMp-owner in 
 want of a charter applies to a broker, who gives the name of another broker, and 
 he mentions a third broker, whom the principal employs, it is simply prepos- 
 terous that the broker originally applied to should have any claim on the princi- 
 pal. A custom is alleged in support of it, but no usage can make such a custom 
 good." Bramwbll, "Wilde, and Martin, BB., agreed that even if such a cust6m 
 could be established, it would be bad." However, in another case in the same 
 year, in the same court, where the rights of " introducing brokers " was dis- 
 cussed, a custom among ship-brokers that thte introducing broker should receive 
 a commission on every renewal of a charter originally effected through him was 
 held admissible. The principal question in this last case was whether the usage 
 was in conflict with the terms of the contract between the parties ; and of the 
 four judges who sat, only Pollock, C. B., questioned its legality.' 
 
 § 153. Usage cannot excuse a Disregard ol Instructions. — A usage for a 
 broker to act inconsistent with his relations with his principal, or to disregard 
 his instructions, is bad. In Day v. Holmes,'' it was held that the order of a cus- 
 
 1 Spear v. Xewall, 23 Vt. 159, Burton o. * Loud v. Hall, 106 Mass. 404. 
 
 Blin as Vt 151 ' Miller v. Insurance Co., 1 Abb. N. 0.470. 
 
 ■' Smetz 'v. Kennedy, Riley, 218. « Gibson v. Crick, 1 Hurl. & Co!t. 142. 
 
 « Ensworth v. New Tork, etc., Ins. Co., 7 ' Allen v. Sundius, 1 Hurl. & Colt. 123. 
 
 Am. L. Beg. 
 
 » 103 Mass. 306. 
 
298 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 tomer to a broljer to buy stock, deliverable at any time, at buyer's option, 
 in sixty days, would not authorize the broker to buy the stock himself at 
 thirty days, and deliver it to his customer at the end of sixty days at an 
 increased price and interest, besides the usual commission, though a general 
 usage among stock-brokers to act in this manner was proved. "There are 
 many forcible objections to its validity," said the court, " but a conclusive one 
 is that it is against sound policy and good morals. It authorizes the broker, in 
 his discretion, to disregard his instructions, and instead of acting solely in the 
 interest of his principal, to speculate upon the transaction for his own benefit. 
 It creates in the agent an interest adverse to his principal, and is inconsistent 
 with his duty and the obligations which the law imposes upon him when he 
 enters into a contract of agency." In a previous case in the same court, it was 
 said by Foster, J.: "It would be difficult to support a usage by which a 
 broker employed to purchase stock might, without the knowledge of his princi- 
 pal, buy the stock for himself." ' So, in a Maryland case it was said: "The 
 order is given to a stock-broker to purchase certain shares of a particular stock, 
 by parties not shown to have actual knowledge of any peculiar usage or custom 
 of his business; and whilst the law will allow custom and usage to regulate its 
 execution in the reasonable mode we have indicated, it will not permit the de- 
 fendants, by the force of any such custom or usage, to be bound by a merely 
 fictitious purchase — such, for instance, as one not bona fide and actually made, 
 but pretended to be effected by mere entries upon books and accounts between 
 the plaintiff and his New York agents." ' In Crupper v. Cook,^ a usage in the 
 wool trade that when a broker is employed to buy wool, he may either contract 
 in the name of the principal, or, at the request of the seller, may, without the 
 consent of the principal, make himself personally responsible, was held valid 
 and reasonable by the English Court of Common Pleas; and subsequently, on 
 the authority of this case, the same court ruled that a broker might make him- 
 self personally responsible, as between himself and the seller, if there was a 
 usage to warrant it. But two of the judges thought that although a usage 
 may control the mode of performing a contract, a person employing a broker 
 would not be bound by a usage to buy on a running account the whole amount 
 covered by orders from different parties, and then to tender the amount 
 covered by his order, or, if the delivery was not taken, to claim the differ- 
 ence.* This case was afterwards taken to the Court of Exchequer Chamber, and 
 there the judges were again equally divided, Kelly, C. B., Ch.v.vnbll, B., 
 and Blackbukjj, J., holding that the defendant was bound by tlie usage, while 
 Cleasby, B., and Mellor and Hannbn, JJ., were of the contrary opinion. It 
 was then carried to the House of Lords, where the decision of the lower court 
 was unanimously reversed, the Lord Chancellor and Lords Chklmsford, 
 Hathbrly, and O'Hagan all agreeelng. " The usage," said Lord Chklmskord, 
 "is of such a peculiar character, and is so completely at variance witli the 
 relations between the parties, — converting a broker employed to buy into a prin- 
 cipal selling for himself, and thereby giving him an interest wliolly opposed to 
 his duty, — that I think no person who is ignorant of such a usage can be held to 
 have agreed to submit to its conditions merely by employing the services of a 
 
 I Pickering v. Domorritt, 100 Mass. 306. a L. K. 3 c 1' 194 
 
 = Eosenstock «. Toimoy, 33 Md. 169. i Mollett v. Itoblnson, L. U. 5 C. P. 646. 
 
PRINCIPAL AND AGENT. 299 
 
 Usage to DisrcErarcl Instructions. 
 
 broker, to whom the usage Is known, to perform the ordinary and accustomed 
 duties belonging to such employment." ' A broker Intrusted with stock-certifi- 
 cates, with written instructions to sell under certain circumstances, cannot 
 transfer the shares for a different purpose to either himself or another person, 
 and a custom among brokers to do so is irrelevant.* Where an agent received 
 of his principal the sum of $276 ■' to buy flour," and the latter, receiving no 
 flour, demanded his money, when the agent produced a receipt for $300 from 
 another person "towards 100 barrels of flour, at #4 a barrel," which he wished 
 to exchange for his own receipt, but the principal refused, it was held that the 
 latter was entitled to recover the money; and that evidence that it was the cus- 
 tom among merchants going or sending to purchase goods to pay for the 
 article purchased without taking a delivery or seeing it, this being considered 
 a purchase, was inadmissible.' 
 
 No usage will warrant a factor in departing from the positive instructions of 
 his principal. In an action against the defendants to recover the proceeds of 
 certain rice consigned to them as factors, for sale, it appeared that the plaintiff's 
 instructions to the defendants were to sell for cash, but that they sold and deliv- 
 ered the rice to another party without his paying for it, and that he afterwards 
 absconded. The defendants set up a usage which had existed among factors in 
 the place of the sale for forty years, where they sold for cash, to give indulgence 
 of a week or a fortnight before calling for the money. Cheves, J., thought the 
 usage reasonable, and essential to the transaction of business in that community ; 
 but all the other judges of tlie Supreme Court of South Carolina were of 
 opinion that it could not on any account excuse the departure from the instruc- 
 tions given. " That usage," said Nott, J., who spoke for five members of the 
 court, " does in many instances constitute the law, and that contracts must be 
 construed with reference to the usages of the trade or business to which they 
 relate, are principles too well established to be questioned now. Numerous ex- 
 amples are to be found among the cases arising on policies of insurance ; and 
 perhaps no stronger case can be found than that of three days' grace allowed in 
 cases of bills of exchange. But, to entitle a usage to that high respect it must 
 be a reasonable one. It must be for the benefit of trade generally, and not for 
 the convenience and benefit of a particular class of individuals. And I can con- 
 ceive of no usage that will authorize a departure from positive instructions. 
 The instructions of a principal to his agent make the law by which he is to be 
 governed, and to authorize him to depart from them would be depriving the 
 parties of the privilege of making their own terms." * Where factors in Mil- 
 waukee received a consignment of wheat, with instructions to sell for cash, and 
 they made a sale of the wheat, taking the purchaser's check for the amount, pay- 
 able the next day, and on the next day he failed and the check was dishonored 
 they were held liable to their principal ; and not the less that, by the usual course 
 of business in Milwaukee, factors collected cash sales on the day after delivery.^ 
 . So, where a commission merchant to whom cheese was consigned was directed 
 
 > Robinson v. MoUett, L. K. 5 C. P. 646; = Parsons v. Martin, 11 Gray, 112. 
 
 L. R. 7 C.P. 8t; L. R. 7H. L. Cas. 802. And 3 Strong «;. Bliss, 6 Mete. ii9S. 
 
 sec Bostock V. Jardinc, 3 Hurl. & Colt. 700; < IJarksdale v. Brown, 1 Nott & M. B17; 9 
 
 Johnson v. Kershaw, L. R. 2 Exoh. 82; Am. Dec. 720. 
 Ireland v. Livingston, L. R. 5 Q. B., 516; L. » Hall v. Storrs, 7 Wis. 253. 
 
 R. 2 Q. B. 99; L. U. 5 H. L. Cas. 395. 
 
360 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 to sell it for cash, and delivered it without receiving the money, he was not 
 protected by a custom existing among commission merchants to deliver such 
 articles and wait for the pay a week or ten days.' So, where a person to whom 
 goods were consigned to sell on commission, " for cash, or not on credit," sold 
 them to one who agreed to pay for them in a few days, but failed to do so, it 
 was held that the factor could not show in defence a custom by which such sale 
 was considered a cash sale.''' Again: in a New York case of a similar character, 
 an offer on the part of the defendant to prove that the uniform course of the 
 market in New York, where the cattle in question in that case were sold, " in 
 making sales for cash," was to deliver the cattle to the purchaser, who slaugh- 
 ters and weighs them, and after the weight is ascertained pays for them, which 
 occupation usually occupies two or three weeks in the sale of a drove of cattle, 
 was rejected by the court.' Clarle v. Van Northwiok,* decided by the Supreme 
 Court of Massachusetts in 1823, cdihflicts with the rule in the cases just cited. 
 The plaintiff sent several boxes of lemons and oranges from Boston to the 
 defendants at New York, with directions to sell them for cash. A week later 
 the defendants sold them to a person in good credit, sending in their bill the 
 next day for payment. In the meantime, however, the purchaser had become 
 insane, and only a portion of the money was paid. On the trial of an action for 
 the balance, the question arose whether this was a sale " for cash," and the 
 defendants introduced evidence to show that both at Boston and New York, 
 when orders were received to sell goods for cash, although the seller has the 
 right to demand the cash on delivery of the goods, it is nevertheless usual, it 
 the purchaser is in good credit, to deliver the goods, and send in the bill for 
 payment the next day, or within two or three days ; and that such, in the under- 
 standing of merchants, would be a sale " for cash." The jury were instructed 
 that if this custom was proved it would relieve the defendants, and they returned 
 a verdict in their favor. In the higher court the ruling was affirmed. " Upon 
 the evidence of the usage," it was said, " which was properly admitted, the 
 jury have found that this was a cash sale, and it would embarrass business very 
 much if it were not so considered. The defendants did not intend to allow the 
 purchaser a credit for any length of time. They might have sued him imme- 
 diately after the delivery of the fruit. Such a sale is no violation of orders to 
 sell for cash, unless it is made to a person in insolvent circumstances, which is 
 not the case here." 
 
 Where goods are left with the clerk of a forwarder, with special directions as 
 to the mode of transportation and delivery, it is the duty of the forwarder to 
 forward the goods together with the directions; and a custom of the place 
 where the business is transacted that forwarders' clerks wUl not forward special 
 directions, if not known to the owner, will not bind him.* 
 
 § 154. Liability of Principal and Agent on Contracts.— As a general rule an 
 agent is not personally bound by a contract made by him for his principal An • 
 agent, as such, and contracting as agent and not as principal, incurs no per- 
 
 1 Bliss V. Arnold. 8 Vt. 252. see Stewart .,. Soudder, 2 Am. L Keg (o s ) 
 
 2 Ontlin S.Smith, 24 Vt.Ki. 80 (Jfew Jersey). ^m. i.. ueg. (o. s.) 
 » Leland v. Douglass, 1 Wend. 490. And » 1 Pick. 343. 
 
 ' Huichins v. Ladd, 16 Mich. 493. 
 
PRINCIPAL AND AGENT. 301 
 
 Liability on Contracts. 
 
 sonal responsibility upon tlie contract itself.' This principle runs through all 
 the cases, the apparent conflict being where, upon thte facts of different cases, it 
 has been decided in different ways, that the agent has or has not sufilciently 
 described himself to the other contracting party as acting in the capacity of an 
 agent.^ The law in England seems to be established that an agent signing a 
 contract as agent, or showing his agency in some manner, Is not personally 
 liable, even though his principal's name be not disclosed.' On the other hand. 
 Judge Stoky states the American rule to be that agents will be personally bound 
 on contracts made by them, " where' they are known to be agents and acting 
 in that character, but the name of their principal is not disclosed ; for, until such 
 disclosure, it is impossible to suppose that the other contracting party is willing 
 jo enter into a contract exonerating the agent and trusting to an unknown prin- 
 cipal, who maybe insolvent or incapable of binding himself." * But the English 
 courts have been liberal in allowing evidence of usage to show a different 
 understanding in different trades. In several well-considered cases, an agent 
 who has entered into a written contract for an undisclosed principal has been 
 made personally liable, upon proof of a custom recognizing such a liability. 
 
 In the leading case of Humfrey v. Dale,^ the defendants, London brokers, 
 being employed to buy oil for their principal, gave the vendor a note as follows : 
 " Sold this day for Messrs. Thomas & Moore to our principals, ten tons of 
 liaseed oil. Dale, Morgan & Co., brokers." The defendants did not disclose 
 the name of their principal at the time, and evidence was admitted at the trial 
 that, according to the usages of the trade, whenever a broker purchased with- 
 out disclosing the name of his principal he was personally liable on the con- 
 tract. This ruling was affirmed on appeal. This case was decided in 1857. 
 
 iiVeefv.MtrtoJi* was decided in 1871. The defendants were fruit-brokers In 
 London, and were employed by the plaintiffs, who were merchants in London, to 
 sell for them. They gave to the plaintiffs the following note: "We have this 
 day sold for your account to our principal" certain tons of raisins. " Signed, 
 Murton & Webb, brokers." The defendants' principal having refused to accept 
 a part of the raisins, the plaintiffs brought an action against the defendants, and 
 gave evidence that, in the London fruit-trade, if the brokers did not give the 
 names of their principals in their contracts they were held personally liable, 
 although in fact they contracted as brokers for a principal. On the strength of 
 this evidence the plaintiffs had a verdict. In the Court of Queen's Bench the 
 custom was recognized, Cockburn, C. J., saying: "Although where a party 
 contracts as agent there would not, independently of some further bargain, be 
 any liability on Mm as principal, yet if a man, though professing on the face of 
 the contract to contract as agent for another, and to bind his principal only, and 
 not himself, chooses to qualify that contract by saying that he will mal^e himself 
 liable, though he is contracting for another and giving to another rights under 
 the contract, he himself will incur the same liability as his principal. Now, 
 
 1 3 Kent's Comm. 629; Evans on Ag. 308. Southwell v. Bowdioli, L. H. I O. P. Div. 100; 
 
 2 Green v. Kopke, 18 C. B. 549; Mahoney Gadd v. Houghton, L. E. 1 Exch. Div. 357. 
 V. Kekuhe, U C. B. 390; Reid v. Draper, 6 ' Evans onAg. 194, and cases ante. 
 
 Hurl. & N. 813; Fairlee v. Feuton, L. R. 5 ' Story on Ag., § 267 (citing Winsor v. 
 
 Exch. 169; Paice v. Walker, L. R. 5 Exch. Griggs, 5 Oush. 210) . 
 173; Sharman v. Brandt, L. E. 6 Q. B. 730; " 7 El. &B1.266, post, Chap. IV. 
 
 « L. E. 7 Q. B. 126, ante, p. 90. 
 
302 IN DIFFERKNT RELATIONS AND OCCUPATIONS. 
 
 Principal and Agent. 
 
 although where a party professes to contract as broker It might prima fade be 
 taken that he contracts without the intention of incurring liability on his own 
 part, yet if by the custom of the particular trade there is that qualification of 
 the contract which, if written into the contract, would undoubtedly bind him, 
 the qualification may, I think, be imported into the contract by evidence of the 
 custom. * * * The defendants here undoubtedly call themselves brokers, 
 acting for their principal. But if the custom attaches, the non-liability which 
 would under ordinary circumstances prima facie exist in a contract made by a 
 person purporting to contract as broker ceases, and the contract assumes a dif- 
 ferent form and character, and carries with it different legal consequences, by 
 reason of the custom of the trade." Blackburn, J., was of the same opinion. 
 " I agree," said he, " that in the present case, if it were not for the evidence of 
 custom, the defendants, who contract for a principal — ' sold to our principal ' -^ 
 and sign as brokers, would not have been liable at all upon this contract. But 
 then there came the custom, and the evidence of custom was to this effect: that 
 in this trade the brokers deal on these terms. The custom is, that if the broker 
 does not disclose his principal's name he is personally liable." 
 
 Hutchinson v. Tatham,^ a still stronger case, was decided in 1873. The de- 
 fendants, acting as agent for one L., with his authority chartered a ship for the 
 conveyance of a cargo of currants from the Ionian Islands. The charter-party 
 was signed by the defendants as " agents to merchants," the name of the princi- 
 pal not being disclosed. At the trial the plaintiff offered evidence, which was 
 admitted, of a trade usage that if the principal's name is not disclosed within a 
 reasonable time after the signing of the charter-party the broker shall be per- 
 sonally liable. In the Common Pleas it was held that the evidence was rightly 
 admitted, relying upon Humfrey v. Dale and Fleet v. Murton as authority for 
 their decision. A usage of trade may render agents and factors acting for per- 
 sons resident in a foreign country personally liable on contracts made for their 
 employers, although they fully disclose the character in which they act.' 
 
 But a person contracting as agent will be personally liable where he makes 
 the contract in his own name.' In such cases, evidence of usage to exonerate 
 an agent from personal liability has been held inadmissible. In Magee v. At- 
 kinson,* decided in 1837, A., a broker employed by B. to sell certain railway 
 shares, agreed with C, D.'s broker, to sell him fifty shares, of which A. after- 
 wards informed his clerk at his office, who made an entry in his book as of a sale 
 from A. to C, and a contract note to that effect was sent to C. A. subsequently 
 saw the entry in the book, and attested it by writing in the name of B. as seller. 
 Another note was accordingly sent the same evening or the next morning to. 
 C, but C. received them both together; he did not return the first note, nor did 
 A. request it. In an action by D. against A. for breach of the agreement in not 
 completing the sale, Patteson, J., left it to the jury to say whether the second 
 note was a correction of a mistake in the first, and told the jury that U the 
 defendant entered into a written contract in his own name he could not after- 
 wards set up that he was acting merely as a broker, and that, although known 
 to be a broker, if he signed the contract in his own name he was liable. He also 
 
 ! J"," S' ^ *1' **■ tf ■ '''°'' "• Stainer, 22 Wend. 244; and C8se» 
 
 - McKenzie v. Novina, 3 Mass. 434. cited in Story on Ag., § 269. 
 ' Jones V. Littlodalc, (1 Ad. A E. 486; Hop- « 2 Mee. & W 440 
 
 kinsw. Mehaffy, 11 Serg. &B. 129; Kirkpat- 
 
PRINCll'AL AJ«JD. AGENT. 303 
 
 Vendor and Purchaser. 
 
 rejected evidence that it was the custom in Liverpool to send in brokers' 
 notes without disclosing the principal's name. The plaintiff having recovered 
 a verdict, the direction and ruling of the trial judge were affirmed by the court 
 in banc. " The custom offered to be proved," said Alderson, B., " is a custom 
 to violate the common law of England." 
 
 In Trueman v. Loder,^ decided in ISiO, L., a merchant residing at St. Peters- 
 burg, carried on business through H. H., having ceased to represent L., con- 
 tracted with T. to sell him tallow, intending to make a contract for himself, but 
 T. thought him an agent for L., as before. The contract was made by W., a 
 broker, acting for both. He signed bought-and-sold notes, the former begin- 
 ning, " Bought for T.," and the latter, " Sold for H. to my principals." It was 
 held that L. was liable for the non-delivery of the taUow, and that evidence of a 
 custom in the tallow trade that " a party might reject the undisclosed principal 
 and look to the broker for the completion of the contract, was inadmissible." 
 
 § 155. Attorney and Client. — A custom for attorneys to charge a client 
 with a term-fee at each term, excepting at the term at which the case is argued, 
 when an argning-fee is taxed instead, and in addition thereto, when the defend- 
 ant prevails, to charge the client with the taxable costs, exclusive of witnesses' 
 fees and money advanced by the client, is reasonable and valid.^ So, retainers 
 are chargeable by custom, without a special contract ; ' and attorneys may, by 
 custom, become responsible for a sheriff's fees in the stead of the client.* 
 
 IX. Vendor and Puuciiaser. 
 
 § 156. treages of Trade affecting Sales. — As a general thing, where nothing 
 is said as to the terms of sale, it is presumed to be made in compliance with the 
 usage of the particular trade or of the parties. Evidence of usage in a particu- 
 lar trade is admissible for the purpose of showing the modes of effecting sales -*- 
 as, for example, the usage of the cloth trade relative to the return of cloth sent 
 for inspection ; * or that, according to the known usages of the cotton trade, 
 cotton is always sold by sample ; " that upon the sale of berries in bags by 
 sample, the custom of the trade is that the sample represents the average quality 
 of the entire lot, and not the average quality of the amount contained in each bag, 
 taken separately ; ' that it is the custom among flour-merchants that the vendee 
 may rescind the sale and return the flour within ten days, if it prove to be 
 unsound and damaged.^ An offer sent by mail, by one who understands that 
 according to the usage of business a reply may be sent by mail, carries with 
 it an authority to communicate acceptance by mall.' A usage in the liquor 
 trade, upon the sale of liquor in barrels, to measure but one barrel in ten, and 
 tlien make an- estimate, of the whole based on this measurement, has been 
 
 ' 11 Ad. &E..589. » Boorman v. Johnston, 12 Wend. 566; 
 
 = Bodflsh f. Fox, 23 Me. 90; Codman b. Willings d. Consequa, 1 Pet. C. Ct. 225. And 
 
 Armstrong, 28 Me. 91. see Atwater v. Clancy, 307 Mass. 369. 
 
 2 Eggleston v. Boardman, 37 Mich. 14. ' Schnitzcr v. Oriental Print- Works, 114 
 
 * Doughty v. Page, 48 Iowa, 4S3. Mass. 123; Leonard v. Fowler, 44 N. Y. 289. 
 
 ' Wood v.: Wood, 1 Car. & P. 59; ante, p. « Uandall v. Kehlor, 60 Me. 37. 
 
 3. And see Leigh v. Mobile, etc., R. Co., 58 » Wall's Case, L. B. 15 Eq. 18._ 
 Ala. 165. 
 
304 IN UIFFEKENT KELATXONS AND OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 adjudged reasonable and valid. An action was brought in a New York court to 
 recover the value of one hundred and forty gallons of liquor, being a deficiency 
 in quantity on a sale of liquor in barrels by the defendant to the plaintiff. The 
 deficiency had been ascertained by measuring one in ten of the barrels, accord- 
 ing to the custom of the trade, which was proved on the trial. The court held 
 that, this being the custom, an actual measurement of each barrel need not be 
 shown before a recovery could be had, and the plaintiff had a verdict. On 
 appeal, the reasonableness of the usage was affirmed. "It did not," said 
 Brady, J., " contravene any established rule of law, on any given state of facts, 
 but related simply to the mode of ascertaining a fact upon which a rule of 
 law might be declared. The contract between the parties, enlarged or fully 
 expressed by reference to the custom mentioned, would be : ' I sell you a num- 
 ber of barrels of liquor, which I say contain a certain number of gallons, stated 
 on this bill, but the exact quantity may be ascertained by measuring ten out of 
 every one hundred of the barrels, or in like proportion for any number, and 
 making a general estimate founded upon such measurement.' This mode of 
 ascertaining the quantity is reasonable and convenient. It is equally open 
 to both parties, and must result often in a saving of labor, time, and expense. 
 It does not contravene any policy or principle of the law, and is, in fact, an 
 agreement that as to quantity both seller and buyer may, by a system of average, 
 determine the number of gallons contained in a number of barrels, without 
 gauging or measuring each one. As a commercial usage it seems to be one of 
 great utility, as, so far as the evidence given in this case illustrates its operation, 
 it subserves the ends of justice, inasmuch as no testimony was offered by the 
 defendant to controvert the result of the examination by the plaintiff's wit- 
 nesses." ' And where the plaintiff sent a quantity of cider to the defendant to 
 be sold by him, and after the cider was so disposed of the defendant returned 
 other barrels, equal in number and value to the original ones, but the plaintiff 
 demanded and brought trover for the original barrels, it was held that the 
 defendant was protected by giving in evidence a custom of the trade to let the 
 casks go to the purchaser with their contents, and return others of equal value. 
 And in the sale of tobacco, usage may show that the weight is computed as 
 previously ascertained at the time of packing and marked on the cases, and 
 not by the actual weight at the time of the sale." So of a custom to sell lum- 
 ber without measuring it.* 
 
 In Bliven v. New England Screw Company,^ the action was for the breach of 
 several contracts for the delivery of screws, of which the defendants were the 
 manufacturers. The contracts were admitted, but to excuse their non-perform- 
 ance the defendants proved that they were the sole manufacturers in the United 
 States, and were constantly receiving orders from their customers faster than 
 
 1 Dalton V. Daniels, 2 Hilt. 472. another, and that the precise barrels should 
 
 « Sturgis V. Buckley, 32 Oonn. 18. " The be sent back to the original owner. About 
 
 plaintiff claimed that the custom was not as well might this change be required in the 
 
 reasonable. The court held that it was so case of flour, or pork, or flsh." McOurdf, 
 
 in the lormer case. It would bo most un- J., in Sturgis v. Buckley, 32 Conn. 266. 
 
 reasonable to insist that cider sent to mar- • Jones v. Iloey, 128 Mass. 586. 
 
 ket Bhonld be drawn off into dillerent casks * Lee v. Kilburn, 3 Qray, 694. 
 
 whenefter transferred from one person to * 23 How. 420. 
 
VfiNBOK AND PURCHASER. 305 
 
 Teims of Sale. 
 
 they could fill them, and for larger quantities than they were able to produce. 
 The plaintiff alleged that the orders had been unconditional, and had been 
 -accepted without reservation. The defendants gave evidence of a custom In 
 their business to fill orders received of customers in their regular order, accord- 
 ing to date, and as fast as the articles could be made. ■ It was held in the 
 Supreme Court of the United States that the case must be decided with regard 
 to that custom. " Nothing can be plainer," said Mr. Justice Clifford, " than 
 the proposition that the evidence in the case proved that the supply with the 
 defendants was much less than the demands of their customers. To avoid dis- 
 satisfaction, therefore, they were obliged to devise some system which would 
 enable them to do equal justice among those who were properly competing for 
 the article. Accordingly, they adopted a rule to accept all such requests, and 
 "to enter the list in a book kept for the purpose, and to fill them, as far as possi- 
 ble, in the order they were received. They had been in business for some time, 
 and that rule had become the custom of their trade, and as such was well known 
 to the plaintiffs during all the time of these transactions. Many of their orders, 
 thus given at short intervals, had been expressly accepted to be filled in turn or 
 in course, and the correspondence plainly showed that the plaintiffs well knew 
 what was meant by those terms. Evidence to prove that the orders had been 
 taken up in turn, and filled in proportion to the orders given by other customers, 
 was therefore admissible in order to show that the defendants had fulfilled 
 their contract and done no injustice to the plaintiffs ; and it is equally clear that 
 evidence to show what had been the usage of the defendants' business was also 
 admissible, because that usage constituted an essential part of the several con- 
 tracts which were the subjects in controversy." 
 
 §157. Terms of Sale — Price — Credit. — Where nothing has been agreed as 
 "to price, or the contract is silent thereon, the law implies a promise to pay at 
 the usual market rates.' So, in regard to credit, usage is relevant^ — as, the 
 usage of dry-goods jobbers in Boston that goods not purchased on a cash sale 
 are purchased on a credit of six months where the bills are not marked; ^ or a 
 usage in the flour trade that where the contract is silent upon the point it is for 
 cash, but the purchaser has ten days in which to examine the goods.* Such 
 proof may often be of importance to prevent the Statute of Limitations from 
 defeating a recovery for the price.* A usage that where cotton stored in a 
 warehouse is found to be in a damaged condition, the warehouseman shall send 
 it to a pickery to be " picked," and that the factor shall be responsible for the 
 «xpense, is reasonable and binding.* And evidence of usage is admissible to 
 show that on a sale of coal shipped from the United States to Canada, the pur- 
 chasers pay the customs duties when they land the goods.' 
 
 ' Konitzky v. Meyer, 49 N. Y. 571 ; Booth ' Parnsworth v. Chase, 19 N. H. 535. 
 
 «. Pierce, 38 N. Y. 463 ; Bennett v. Drew, 3 * Scudder v. Bradbury, 106 Mass. 422. 
 
 Bosw. 355; Sturm v. Williams, 38 N. Y. S. C. » Hursh v. North, 40 Pa. St. 241. 
 
 (J. & S.) 323; Harris v. Panama R. Co., 58 " Desha v. Holland, 12 Ala. 513. And see 
 
 N. Y. 800; Cliquot's Champagne, 3 Wall. 114. Holmes v. Gayle, 1 Ala. 617. 
 
 ' Swancottr.Westgarth,4East, 74; Gordon ' Biown v. McDonnell, 9 Upper Canada 
 
 -v. Swan, 2 Camp. 429; Deshler v. Beers, 32 B. 312. 
 111. 368. 
 
aO(i IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 § 158. The Rule Caveat Emptor — Warranties on Sales. — Oa sales of personal 
 property, where the buyer has an opportunity to inspect the commodity, and the 
 seller is guilty of no fraud, and is neither the manufacturer nor grower of the 
 articles he sells, the raaxum caveat emptor applies, and the buyer takes the rist 
 of the quality upon himself. This doctrine is recognized by the English courts,^ 
 and is so universally accepted in this country that the courts of all the States in 
 the Union where the common law prevails, with but one exception,' sanction it.' 
 Whether this rule can be controlled to any extent by custom, and whether a 
 warranty may be implied by usage where the law implies none, has been inuch 
 discussed in the courts. In the English case of Jones v. Bowden,* it was proved 
 that in auction sales of certain drugs — as, pimento — it was the custom to state 
 in the catalogue whether they were sea-damaged or not; and in the absence of a 
 statement that they were sea-damaged, they were assumed to be free from that 
 defect. The court held, on this evidence, that freedom from sea-damage was 
 impliedly warranted in the case. Heath, J., i-eferring to a Nisi Prius decision of 
 his, that where sheep were sold as stock there was an implied warranty that they 
 were sound, proof having been given that such was the custom of the trade.* 
 This ruling is referred to at some length by Mr. Benjamin in the last edition of 
 his work on Sales, and, relying upon it as an authority, he states it as a general 
 rule that an implied warranty may result from the usage of a particular trade. 
 On the other hand. In the American case of Barnard v. Kellogg'' it was held by 
 the Supreme Court of the United States, in 1870, that a custom of dealers in wool 
 in New York and Boston to imply from the fact of sale alone a warranty from the 
 seller that the wool is not falsely packed, was not admissible to control the gen- 
 eral rules of law in relation to the sale of personal property.' The same view- 
 was taken by the Supreme Judicial Court of Massachusetts, in 1865, concerning a 
 usage in the hide and leather trade at Boston to impliedly warrant all goods to 
 be of merchantable quality. " The decisive objection to its recognition," said 
 BiGELOw, C. J., " is that it embraces an element directly contrary to the ancient 
 and well-established rule of the common law that a vendor cannot be held 
 responsible for the quality of goods sold if he makes no warranty or represen- 
 tation concerning their nature, condition, or merchantable value. In other 
 words, it abrogates, to a certain extent, the maxim caveat emptor, and puts on 
 
 ' Clare v. Maynard, 7 Car. A P. 241; Hall Mason, 4 Conn. 428; Moses v. Mead, 1 Denio, 
 
 I). Condor, 2 C. B. (N. s.) 22; Early v. Garrett, S78 ; Kingsbury v. Taylor, 29 Me. 503; West v. 
 
 9 Barn. & Cress. 928; Springwell v. Allen, Cunningham, 9 Port. 104; Seixas v. Woorl, 2 
 
 Aleyn, 91; 2 East, 448; Williams v. Allison, 2 Caines, 48; Wright v. Hart, 18 Wend. 449; 
 
 East, 446; Moricy r. Attenborough, 3 Exoh. Johnston v. Cope, S Har. & J. 89; Oozzins 
 
 500; Hopkins «. Tanqueray, 15 0. B. 130. v. Whittaker, 3 Stew. A P. 323; Taymon v. 
 
 2 The single exception is South Carolina, Mitchell, 1 Md. Ch. 496; Wiasor v. Lombard,, 
 
 where caveat venditor is the rule. See Bar- 18 Pick. 59; Whitaker v. Eastwick, 75 Pa. St. 
 
 nard v. Yates, 1 Nott & M. 142. 229 ; Jackson v. Wetherill, 7 Serg. * R. 480; 
 
 » Barnard ». Kellogg, 10 Wall. 383 ; Willings PolhomuB ». Heiraan, 45 Oal. 573 ; Murray e. 
 
 V. Conseqna, 1 Pet. C. Ct. 301; Holden ». Smith, 4 Daly, 277. 
 Dakin, 4 Johns. 421 ; Sweet v. Colgate, 20 * 4 Taun. 847, ante, p. 186. 
 
 Johns. 196; Hawkins v. Peinberton, fi Robt. 6 Weal] v. King, 12 East, 452. 
 
 42 ; Walsh v. Center, 1 Wend. 185 ; Frazier o. « Benj. on Sales (2d ed.)', § 655. 
 
 Harvey, 84 Conn. 469; Hadley v. Clinton, 7 10 Wall. 3a3, post. Chap. V. 
 
 etc., Co., 13 Ohio St. 502 ; Lord v. Grow. 39 8 And see Mixer v. Coburn, U Meto. 659; 
 
 Pa. St. 88; Irving t>. Thomas, 18 Me. 418; Otts Casco Man. Co. «. Dixon, 3 Oush. 4OT ; People's 
 
 V. Alderson, 10 Smed. & M. 476; Dean v. 6ank r. Bogert, 16 Hun, 270. 
 
VENDOR AND PUUCUASER. 307 
 
 Caveat Emptor. 
 
 the vendor the bBrden of warranty, although he may be ignorant of the quality 
 of the article, or may have had no means of ascertaining its condition or value, 
 and may have had no intention of selling the article with warranty. Such a usage 
 Is very like the one relied upon in the leading case of Thompson v. Ashton,^ 
 which was held invalid and of no effect because it tended to introduce vague- 
 ness, confusion, and uncertainty into the rules regulating the rights and obliga- 
 tions of parties under contracts for the sale of merchandise." ^ In Pennsylvania, 
 in Snowden v. Warder,^ decided in 1831, the Supreme Court admitted evidence 
 of a usage in the city of Philadelphia that the seller of cotton warranted 
 against latent defects, though there was' neither fraud on his part nor actual 
 warranty. Chief Justice Gibson entering a vigorous dissent. Twenty-one years 
 later Snowden v. Warder was disapproved,* and in Wetherill v. Neilson^ was 
 substantially overruled. It is held in Rhode Island that the barter or exchange 
 of a promissory note, indorsed without recourse, for cotton or other merchan- 
 dise, carries with it no Implied warranty of the past or future solvency of the 
 maker, the rule of caveat emptor applying in the absence of fraud ; * and that in 
 such cases evidence is not admissible to show that, according to the custom of 
 the trade, if it turned out that the maker of the note was insolvent at the time 
 of the bargain, the seller had the right to repudiate or rescind the contract.' 
 
 §159. Warranty of Goodness ^ Contintied. — In an Ohio case,* a usage 
 among tobacco dealers in Cincinnati to warrant, on sales of tobacco of a partic- 
 ular de.scription, the article to remain sound and merchantable for the space 
 of , four months after the sale, was admitted, the court relying upon Jones v. 
 Bowden." But in New York it has been held that usage is not admissible to 
 show that the sale of any particular article implies a warranty of its goodness. 
 In Thompson v. Ashton,'" decided by the Supreme Court of New York in 1817, 
 the plaintiff's agent went to the store of the defendant to purchase crockpry- 
 ware, and the latter sold him forty-six crates of crockery-ware, according to the 
 printed catalogue of certain auctioneers in whose store the crockery was for 
 sale, which catalogue conformed to the invoice. The witness did not open the 
 crates; but, after they were sent to the plaintiff, several of them were found to 
 be bad, consisting of ware of an inferior quality. The plaintiff desired to rescind 
 the sale, but the defendant refusing, he brought an action for the fraud, and on 
 the trial offered to prove that it was the custom and usage of merchants in this 
 article that the purchaser purchased and the seller sold on the invoices, without 
 opening the crates or examining the ware in them, and that it was the uniform 
 understanding in the trade, in such transactions, that the exhibition of the 
 .invoices amounted to an understanding on the part of the seller that the ware 
 was good and merchantable. The trial judge rejected this evidence, and the 
 plaintiff was nonsuited. On appeal, the court sustained the ruling, saying: 
 " The evidence offered of a usage or custom in relation to the sale of crockery- 
 ware was properly rejected. No custom, in the sale of any particular descrip- 
 
 ' 13 Johns. «6. ' 20 Pa- St. 448. 
 
 2 Doaa V. Farlow, 11 Allen, 428 ; Boardman « Bicknall v. Waterman, 5 K. I. 43. 
 
 V. Spooner, 13 Allen, 353. And see Baird v. ' Beokwith v. Farnum, 5 E. I. 230. 
 
 Matthewe, 6 Dan.a, 129. » Fatman v. Thompson, 2 Disney, 482. 
 
 s 3 Kawlc, 101. ' " 4 Taun. 483. 
 
 * Coxe V. Heisley, 19 Pa. SI. 243. '° M Johns. 316. 
 
308 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 tion of goods, can be admitted to control the general rules of law. Such a 
 principle would be extremely pernicious in its consequences, and render vague 
 and uncertain all the rules of law on the sale of chattels." 
 
 §160. Warranty — Sale by Sample. —The rule may now be regarded as 
 firmly established, says Mr. Paksons,' that where goods are sold by sample, the 
 seller is held to warrant that they correspond with the sample .^ The exhibition 
 of a sample is equivalent to an afBrmation that all the goods sold by it are 
 similar.' 
 
 But if the sample be fairly drawn from the bulk of the goods, and the bulk 
 corresponds with the sample, but there is a defect in both sample and bulk, and 
 this defect is unknown and undiscoverable, there is no implied warranty against 
 this defect, and the seller is not responsible.* A usage in opposition to this rule 
 has been held invalid in Massachusetts. In DicMnson v. Gay,^ the sale was of 
 unprinted satinet cloths purchased of the manufacturer by sample, and it 
 appeared that the bulk of the goods was not equal to the sample ; that both the 
 sample and the bulk of the goods were damaged by mildew, and that the defect 
 was latent, and could not be discovered until the goods were printed. The 
 defendants offered evidence, in an action for the price of the goods, of a usage 
 of merchants by which, in such cases, the seller should make good to the pur- 
 chaser the damage occasioned by the defect. The court admitted this evidence, 
 and the jury, in answer to special questions, found that the usage exi.sted; that 
 there was a defect in the goods; that it diminished their value In the sum of 
 ^1,456.23; that the goods were not equal to the sample, and that this last defect 
 diminished the value of the goods in the sum of $517 J.8. The plaintiff had a 
 verdict for the balance of the price at which the goods were bargained for, 
 deducting the sum of $617.18, thus rejecting the effect of the usage. On appeal, 
 the judgment was affirmed, the court holding that the deduction of $517.18 
 was properly allowed. "The sale," said Chapman, J., "was by sample. On 
 such a sale it is admitted that the law implies a warranty that the bulk of the 
 goods shall be equal in quality to the sample.' The jury have found that these 
 goods weris not equal to the sample, and have assessed the damages at $517.18. 
 
 1 1 Pars, oa Con. 588. » Story on Sales, § 376 ; Longmer v. Smith, 
 
 ^ 2 Kent's Comm. 48); Ben], on Sales, §648; 1 Barn. & Cress. 1; 2 Dow. & Ey. 23; Hib- 
 
 Dickinson v. Gay, 7 Allen, 29; Williams o. bertw. Shee, 1 Camp. 113; Parkinsons. Lee, 
 
 Spofford, 8 Pick. 250; Oneida Man. Co. v. 2 East, 314; Beebe w. Robert, 12 Wend. 413 ; 
 
 Lawrence, 4 Cow. 440; Gallagher v. Waring, Parker v. Palmer, 4 Barn. & Aid. 387; An- 
 
 1) Wend. 20 ; Boorman v. Jenkins, 12 Wend. drews ». Eneeland, 6 Cow. 684 ; Hastings v, 
 
 586; Waring v. Mason, 18 Wend. 425; liar- Lovering, 2 Pick. 219; Sands v. Taylor, 6 
 
 gous ». Stone, 5N. Y. 73; Beirne v. Dodd, S Johns. 369; Gatliug v. Newell, 9 Ind. 672; 
 
 K. Y. 95; Fhillipi v. Gove, 4 Bob. (La.) 315; Moses v. Mead, IDeuio, 385; Rose v. Beattie, 
 
 Hall V. Plassan, 19 La. An. 11; Ricks i/. 2N'otk.a M. 638; Brower «. Lewis, 19 Barb. 
 
 Dillahnnty, 8 Port. 140; Magee v. Billings- 674; Ormrod «. Huth, 14 Mee. & W. 663. 
 
 ley, 3 Ala. 619; Brantley v. Thomas, 22 ■• Story on Sales, § 876 ; Parkinson ». Lee, 
 
 Texas, 270; Gunlher v. AtweU, 19 Md. 157; 2 East, 818; Ormrod v. Uuth, 14 Mee. & W. 
 
 Otts V. Alderson, 10 Smed. & M. 476; Bor- 663; Carter v. Crick, 4 Hnrl. & N. 412; Gun- 
 
 rekins v. Beran, 8 Rawle, 37 ; Hanson v, ther v. AtweU, 19 Md. 157 ; Sands t>. Taylor, I 
 
 Busse, 45 111. 498; Day v. Ragaet, 14 Minn. Johns. 395. 
 
 278; Bragg v. Morrill, 49 Vt. 45; Bradford ». ''7 Allen, 29. 
 
 Manly, 13 Maes. 138; and note, 7 Am. Deo. ° Bradford v. Manly, 13 Mass. 139. 
 125. 
 
VENUOK AMD PUKCHASER. 309 
 
 Saks by Manufacturer. 
 
 This sum is therefore to be deducted from the agreed price." But the usage 
 set up in the case was adjudged invalid. After reviewing the cases in which 
 usages in opposition to rules of law had been rejected, Chapman, J., sajd: 
 " There is no necessity for such usages ; because, if the parties agree that there 
 shall be a warranty where the law implies none, they can insert the warranty in 
 the bill of sale, or if the manufacturer sells without warranty he can so express 
 it. But, if such usages were to prevail, they would be productive of misunder- 
 Btanding, litigation, and frequent injustice, and would be deeply injurious to the 
 interests of trade and commerce. They would make it necessary to prove the 
 law of the case by witnesses on the stand, and it would be settled by the jury in 
 each particular case. Public policy, therefore, requires that when parties assume 
 obligations which the law does not impose, or release obligations which it does 
 impose, it should be done by express contract." In a Maryland case it was held 
 that evidence was competent to show that, according to the usage of the tobacco 
 trade in the city of Baltimore, a purchaser does not look to the seller to insure 
 a correspondence between the quality of the tobacco in the sample and in the 
 hogsheads, but relies exclusively upon the sample and the fidelity of the public 
 inspector,' Again : the mere exhibition, at the time of the sale, of a sample of 
 the goods does not of itself constitute such a sale by sample as to subject the 
 seller to liability upon an implied warranty, for the reason that such sample may 
 only be shown to enable the purchaser to form an opinion of its probable quali- 
 ties, without any intention on the part of the seller to warrant all the goods 
 sold to be equal to it." The seller by sample is, perhaps, presumed to warrant 
 that the bulk is of the same kind, and equal in quality with the sample in refer- 
 ence to which the contract is made. But, to enforce such a contract when 
 denied, it must be established by evidence of the acts and declarations of the 
 parties tending to prove a contract of sale by sample,' and cani.ot be established 
 by proof that it was the general custom of persons dealing in the particular 
 article thus to contract.* 
 
 § 161. Warranty — Sales by Manufacturer. — The general rule of law that 
 upon the sale of an article by a manufacturer there is an implied warranty that 
 it win answer the purpose for which it is made,* may not be altered by usage; 
 as, for example, by a usage of founders not to warrant their castings against 
 latent defects, or, in the case of patent defects, to be entitled to have the cast- 
 ings returned in a reasonable timie, and to have the option of replacing them 
 
 1 Gnnther v. AtwcU, 19 Md. 157. v. Hopkins,! Mee. & W. 399; Jones v. Bright, 
 
 " Hargous v. Stone, 1 Seld. 73; Waring v. 5 Bing. 533; Brown t. Edgington, 2 Man. & 
 
 Mason, 18 Wend. 425; Hanson v. Bus»e, 45 G. 279; Guriiey v. Atlantic, etc., E. Co., 58 N. 
 
 m. 498; Towell «. GatewooH, 3 111. 23; Y. 358; Jones ». Just,!,. R. 3 Q. B. 197; Port 
 
 Adamsi). Johnson, 15111.345; Kohl c.Linder, Carbon Iron Co. v. Groves, 68 Pa. St. 149; 
 
 39 m. 195; Rose ». Beattie, 2 Nott & M. 538; Brown ». Murphee, 31 Miss. 91; Field ». Ein- 
 
 Browcr v. Lewis, 19 Barb. 674; Gardiner v. near, 4 Kan. 476; Street v. Chapman, 29 Ind. 
 
 Gray, 4 Camp. 144 ; PoweU v. Horton, 2 Bing. 142 ; Kingsbury v. Taylor, 29 Me. 508 ; Pacific 
 
 N. C. 668. Iron -Works v. Newhall, 34 Conn. 67 ; Hoe v. 
 
 ' Waring ». Mason, 18 Wend. 425; Osborn Sanborn, 21 N.Y. 652; Bragg ji. Morrill, 49 Vt. 
 
 ». Gantz, 60N. Y. 640; Boyd ». Wilson, 83 Pa. 45; Mason v. Chappell, 15 Gratt. 572; Gerst 
 
 St. 319. V. Jones, 10 Cent. L. J. 151; Bigge v. Parkin- 
 
 « Beirne v. Uodd, 3 Sandf. 89 ; 5 N. Y. 73. eon, 7 Hurl. & N. 9SS. 
 
 ' OUiyant v. Bayley, 5 Q. B. 288; Chanter 
 
310 l\ DIFFERENT KKLATIUNS ANU OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 with new ones.' But evidence of a custom of manufacturers of iron-castings to 
 warrant the quality of^the articles made by them, without an express contract to 
 that effect, is admissible in an action on the implied warranty.' 
 
 § 162. Pledgeor and Pledgee. — It was intimated by Nelson, C. J., in an early 
 New York case, that on a simple pledge' of stock to a broker as collateral 
 security, though the pledgee has no right to dispose of it before the pledgeor fails 
 to comply with his engagement, yet u-sage may change this, — e.g., the general cus- 
 tom of brokers to hypothecate or dispose of it at pleasure, and on payment or 
 tender of the principal debt, to return an equal number of the shares of the same 
 kind of stock.' This language, however, was obiter, and has been disapproved 
 in subsequent New York cases, where the law concerning pledges, and the effect 
 of customs derogatory thereto, have been considered. Thus, in Markhain v. 
 Jaudon,*the defendants, who were stock-brokers, purchased certain stocks for 
 plaintiff in their own names and with their own funds, he depositing with them 
 a "margin" of ten per cent, which he agreed to "keep good." The plaintiff 
 having failed to "keep the margin good," the defendants sold out the stock 
 without notice to him. It was held by the Court of Appeals that the relation, 
 between the parties was that of pledgeor and pledgee ; that a sale under such 
 circumstances without notice was a conversion ; and that, in an action by the 
 plaintiff for such conversion, evidence of a usage that stock held as in this case 
 might be sold by the broker whenever, by the fall of the stock in the market, the 
 "margin" was exhausted and not renewed, was inadmissible, because in direct 
 variance with the rules of law applicable to the relation of the parties. "This 
 was an offer," said Hunt, C. J., referring to the evidence rejected, " not to 
 explain the meaning of particular terras, or to prove attending circumstances to 
 enable the court to construe the agreement, but to change the rights of the 
 parties to a contract. By the law, as I have interpreted it, the customer did not 
 lose the title to his stock by any process less than a sale upon reasonable notice,, 
 or by judicial proceedings. Tlie broker had no right to sell without such a 
 notice. A practice or custom to do otherwise would have no more force than a 
 custom to protest notes on the first day of grace, or a custom of brokers not to 
 purchase the shares at all in a case like the present, but to content themselves 
 with a memorandum or entry in their books of the contract made with their 
 customer." This case was followed seven years later in Baker v. Drake,'' decided 
 in 1876. 
 
 § 163. Sales by Auction. — In Atkins v. Howe,' goods consisting of a case of 
 French printed muslins, and consigned by the defendants to an auctioneer, were 
 sold by him to the plaintiff. Among the conditions of sale was the foUowiug, 
 which was printed on the catalogue, and read by the auctioneer before the sale 
 commenced: "No allowance made for damage on sample packages, nor on any 
 other packages, unless applied for within three days from the sale, at which 
 time the bills must be settled." The goods were not returned until two months 
 
 ' Whitraore v. South Boston Iron Co., 2 = 66 N. Y.518. And see Stenton v. Jerome, 
 
 ^"^"> ^^- 54 X. Y. 480 ; Taylor i>. Ketchum, 5 Robt. 507 ; ■ 
 
 2 Sumner o. Tyson, 20 N. H. 384. Wheeler v. Newbould, 5 Duer, 26; 16 N. T, 
 
 » Allen V. Dykers, 3 Hill, 593. 393 
 M1N.Y.235. « 18 Pick. 16. 
 
VENUOK AND PDKCHASER. 311 
 
 Rescission of Contracts. 
 
 after the sale, when the plaintiff, on the ground that they were damaged, 
 returned them and brought an action for the price, contending on the trial that 
 the limitation of three days in the conditions of sale did not apply to the owners 
 ■of goods sold at auction, and offered evidence that, according to the custom of 
 merchants at Boston, goods were returned by purchasers at auction to the 
 •owners, and received by them or allowances made after the expiration of the 
 three days, if within a reasonable time after the sale. But the evidence was 
 rejected, Shaw, C. J., saying: "The evidence of custom, as offered, was 
 plainly inadmissible. Custom is often of importance to show how parties are 
 to be understood in the language which they have used, but this is not such a 
 case. Here was a claim for damage. The terms of sale were that all claims for ' 
 damage must be made within three days, and before the bills were settled. The 
 usage had no tendency to alter or affect the terms or meaning of this stipula- 
 tion." The usage of auctioneers that their implied warranty shall expire after 
 a, certain time, at the expiration of which time the parties are in the same posi- 
 tion as if no warranty had been given, has been adjudged reasonable and bind- 
 ing upon purchasers.^ Where a party purchased at an auction a quantity of 
 Indigo, notice being given at the time of sale that it would be sold subject to 
 the usual tare of ten per cent, it being afterwards discovered that the indigo 
 was fraudulently packed, and that the actual tare was seventeen per cent, he 
 was allowed to show that in all cases of fraudulent packing it was the custom 
 ■of the trade to allow the purchaser the actual tare." 
 
 § 164. Rescission ol Contract by Buyer. — When a sale of goods is made 
 upon false representations, the purchaser may return the goods and rescind the 
 contract.' But if he be silent, and continue to treat the prjperty as his own, he 
 will be considered as waiving the objection, and will be as conclusively barred ' 
 as if no fraud or fraudulent representation had occurred.* In this connection, 
 another rule of law is well established, viz. ; that the purchaser must rescind the 
 whole contract, and return the whole of the property; it cannot be rescinded in part 
 and continued in part? The power of usage to alter this well-established rule is 
 
 > By water e. Richardson, 1 Ad- & E. 508; Broughton, 5 De G. M. & G. 539; Boughton 
 
 Smart v. Hyde, 8 Mee. & W. 723. And see v. Standish, 48 Vt. 594; Grymes ti. Sanders, 
 
 Denston e. Perkins, 2 Pick. 88. 93 U. S. 55 ; Butter v. Blake, 2 Hayes & J. 355 ; 
 
 2 Sewall V. Gibbs, 1 Hall, 602. Norton ». Young, 3 Me. SO; Miller o. Grove, 
 
 s Phelps II. Quinn, 1 Bush, 375: Eighterr. 18 Md. 212. 
 Boiler, 31 Ark. 170; Holbrook v. Burt, 22 '■• Shields ». Pettee, 2 Sandt. 262 ; Morse ». 
 
 Pick. 648; Peters v. Gooch, 4 Blackf. 515; Braokett. 98 Mass. 205; Mansfield ti. Trigg, 
 
 Bellamy v. Sabine, 2 .Phill. L. 425; Pintard 113 Mass. 350; Oostigan v. Hawkins, 22 Wis. 
 
 •». Martin, 1 Smed & M. Ch. 126 ; Caldwell ti. 74 ; Campbell v. Fleming, 1 Ad. & B. 40 ; Wil - 
 
 Caldwell, i J. J. Marsh. 53; Mixer's Case, 4 loughby v. Moulton, 47 N. H. 205; Buohenau 
 
 De G. & J. 586; King t7. Savery. 5 H. L. Gas. «. Homey, 12 111. 336; Clarke v. Dickson, 
 
 «27. An offer on his part is sufficient without El. HI. & El. 148; Clay v. Turner, 3 Bibb, 52; 
 
 an actual return. Sraalley ». Hendrickson, Glassell ». Thomas, 3 Leigh, 113; Jopling ». 
 
 29 N. J. L. 371; Smith v. Smith, 30 Vt. 139; Dooley, 1 Yerg. 289; Bradley ». Bosley, 1 
 
 Bamett S.Stanton, 2 Ala. 181; Dill O.Camp, Barb. Ch. 125; K.mball v. Cunningham, 4 
 
 ^ Ala. 249. And if the goods are of no Mass. 405; Connor v. Henderson, 15 Mass. 
 
 value to either party, their return may be 319 ; Miner ». Bradley, 22 Pick. 457 ; Perley 
 
 tlispensed with. Love ». Oldham, 22 Ind. 51 ; «. Balch, 23 Pick. 286 ; Jenkins »■ Simpson, 2 
 
 Gai'land ». Spencer, 46 Me. 528; Christy v. Shep. 364; Coolidge v. Brigham, 1 Meto. 547; 
 
 •Cnmmins, 3 McLean. 386. Hunt v. Silk, 5 East, 449; Giles v. Edwards, 
 
 iMcCulloch o. Scott, IS B. Mon. Y^; 7 Term Rep. 181; Thornton v. Wynn, 12 
 
 Thoma« V. Bartow, 41J N. Y. 20O; Jennings v. Wheat. 183 ; Pulsifer ». Hotchkiss, 12 Conn. 
 
312 IN DIFFKUKiVT liELATIONS AND OCCUPATIONS. 
 
 Vendor and PurchaHer 
 
 well illustrated by the case of Clark v. Baker.^ The plaintiff purchased of the 
 defendant a cargo of yellow and white corn, which was then lying on board a 
 schooner belonging to the latter, the quantity being unknown. He agreed to- 
 pay a certain sum per bushel for the yellow corn, and another sum per bushel 
 for the white corn, the defendant warranting it to be of a described quality, and 
 did pay $1,200 " on account of corn per schooner." The schooner was hauled 
 to the plaintiff's wharf, and he transferred to his warehouse a part of the com, 
 and refused to receive the remainder on the ground that the residue was not of 
 the kind the defendant had warranted it to be. He immediately gave the defend- 
 ant notice that he would receive no more of his cargo, and requested him to 
 take the schooner away. The com taken by the plaintiff amounted, at the 
 agreed price per bushel, to $1,067, and he brought an action to recover back the 
 difference between that sum and the f 1,200 paid by him in the first Instance. 
 The defendant set up that the contract was entire, and maintained that the 
 action would not lie without proof that the plaintiff offered to return the corn 
 which he had accepted. This objection was overruled, and the plaintiff had a 
 verdict; but on appeal the defendant's position was sustained by the Supreme- 
 Court, and the judgment reversed and a new trial ordered. "We are of 
 opinion," said the court, " that the bargain between the parties was an entire 
 contract for the purchase of the whole cargo, and that the plaintiff, not having 
 rescinded it, cannot maintain the present action for the portion of money 
 advanced by him on the whole, which exceeded in amount the value of that 
 portion of the cargo actually retained by him." The parties afterwards went to 
 trial again, and the defendant again objected that the contract was entire, and 
 that the action could not be maintained unless the plaintiff could prove an offer 
 to return the corn which he had accepted and received into his store. To over- 
 come this, the plaintiff now offered to prove the existence of the following 
 usage in the port of Boston, viz. : That when a cargo of corn is sold in bulk> 
 lying in the vessel in which it is imported, and the sale is made under a war- 
 ranty, the purchaser receives and retains so much of the corn as answers the 
 warranty and rejects the residue, which, upon such rejection, becomes the prop- 
 erty of the seller. The trial court admitted the evidence, and the plaintiff 
 again had a verdict and judgment, which this time, on appeal, was affirmed. 
 "In the present case," said Dewey, J., "the usage found by the jury goes 
 directly to establish a rule in contravention of the rules of the common law In 
 relation to rescinding a contract in a case of sale of an unsound article, accom- 
 panied by a warranty or induced by false representations. The general rule 
 of law requires the vendee, if he would rescind the sale for such cause, to 
 restore the entire commodity purchased. The local usage proved is that, in a 
 sale of corn under like circumstances, the party may keep so much of the com- 
 modity as answers the warranty or representation, and decline taking the resi- 
 due; tliat is, he may rescind the contract in part, and, without returning the 
 corn he has received, may recover back the money paid for so much of the 
 
 MO; Lcggett v. Cooper, 2 Stark. N. P. 103; Baldcy v. Parker, 2 Barn. & Cross. SJ; Shaw 
 
 Burton ,, Stewart, S Wend. 236; Voorhees v. v. Badger, laserg. &K. 275; Bowker«. Hoyt» 
 
 Eail, 2 Hill, 288; Stevens o. Gushing, 1 N. H. 18 Pick 65.5 
 
 17; Wa'd.ugton v. Oliver, 2 Bos. & Pul. 61; i 6 Mete.'i62; 11 Meto. 186. 
 
 Oxendale u. Wetheroll, 9 Barn. & Cress. 88B; 
 
VliKUOU AND PURCHASEK. 313 
 
 Delivery of Goods 
 
 article as does not answer the representation. This usage is certainly not an 
 , mireasonable one, and not to be rejected upon that ground. The nature of the 
 commodity, the manner of exposing the article for sale, the price being fixed 
 by the bushel, and the mode of delivery, all alike point out this as a reason- 
 able and convenient usage. We understand the contract to have been an oral 
 one. Such being the case, the admission of the evidence of the usage is not 
 objectionable upon the ground of its being offered to control, vary, or contra- 
 dict a contract in writing. Nor does the usage contradict any express oral con- 
 tract made by the parties. Had it done either, it would have presented a very 
 different question. Usages of this character are only admissible upon the 
 hypothesis that the parties have contracted in reference to them. If the parties 
 make express stipulations as to the terms of a sale or the manner of perform- 
 ance of a contract, or state the conditions upon which it may be rescinded, such 
 express stipulations must be taken as the terms of the contract, and they are 
 not to be affected by any usage contrary to them. Looking at the usage relied 
 upon in the present case, and taking it to have been found by the jury to be 
 well established by the proof as a general usage of the dealers in similar com- 
 modities in Boston, and finding the same is not repugnant to any express stipu- 
 lation in the contract of the parties, without any disposition on the part of the 
 court to extend the doctrine of local usage beyond the adjudicated cases,, yet 
 we have not felt authorized to reject the evidence offered in the present case." 
 But subsequently, in Morse v. Brackett,^ the case of Clark v. Baker was dis- 
 tinguished, and on a very slight pretext a custom in the wool trade by which a 
 purchaser might return a single bale of wool not answering to the warranty, and 
 retain the rest, was rejected. 
 
 The contract must be rescinded within a reasonable time ; and for this pur- 
 pose the vendee must examine the goods without unnecessary delay. If goods 
 are purchased in original packages of a wholesale merchant by a dealer, and it 
 is the custom not to examine such goods until opened by the dealer to sell to 
 his customers, an examination made by him when he opens the packages to sell 
 to customers will be considered as within a reasonable time, provided the goods 
 are offered for sale in due course of trade. ' And a custom of a particular 
 market, that when corn is sold by sample, if the buyer does not on the day it is 
 sold examine the bulk and reject it, he cannot afterwards reject it or refuse to 
 pay the whole price, is reasonable and binding.^ So, a usage that the proper 
 storing of herring when receiving it, without immediate examination, does not 
 waive objections to quality, is admissible.* But a vendor of butter with a war- 
 ranty cannot set up a local usage that he is not liable to take it back unless the 
 purchaser examines and returns it immediately after delivery.* 
 
 § 165. Delivery of Goods — Passing ot Title. — Evidence of usage to vary 
 the ordinary rules as to the passing of title on the delivery of goods has, in a 
 number of cases, been rejected. Although where goods are sold for cash, and 
 the seller delivers them to the purchaser upon the faith of his paying cash, and 
 Immediately demands it, but the buyer refuses to pay, the delivery is not abso- 
 
 ' 98 Mass. 205. * Henkel v. Welsh, 41 Mich. 664. 
 
 « noane v. Diinhnm, 79 111. 131. -Marshall v. Perry, 67 Me. 78. 
 
 * Sanders v. Jameson, 2 Oar. & Eir. 657. 
 
314 IN UIFFEBENT KEJLiATiOiNS AND OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 iute, but only conditional, and the seller may reclaim, the title never having 
 passed away from him;' yet, where they are sold for cash, to be paid for on deliv- . 
 ery, either in cash or commercial paper, and they are delivered without exacting the 
 money or the securities, the delivery becomes absolute, and the title thereby vests in 
 the purchaser.' These rules are established by numerous authorities. There- 
 fore, in Smith r. Lynes,' a usage of trade that on a sale of goods for cash they 
 are delivered to the buyer without payment or demand of payment, and after a 
 few days a bill of the goods is sent to the buyer and the price demanded, and in 
 the meantime the seller retains a lien on the goods for the price, and that such 
 a delivery is conditional, has been held contrary to law, and invalid; * so, also, of 
 a, usage of trade that the delivery of an order for flour by the seller to the buyer, 
 the receipt thereof by him, and his presentation to the drawee of it, the seller 
 not being notified of the non-acceptance of the order. Is a delivery of the flour 
 sold.* " What is delivery," it is said in the last case, " is a question of law, and 
 not of opinion. It is not within the legitimate province of custom to control, 
 or at all interfere with a question of this kind." A usage to .sell flour in store 
 by order, and to pass it by the transfer of the order from hand to baud, without 
 actual delivery of the flour, has been recognized in Virginia.* Where a seller 
 revokes an order before the goods are delivered, a usage that such an order 
 vests the title eo instanti in the purchaser will not avaU the latter.' And usage 
 cannot convert a voluntary and unqualified delivery, without payment, of goods 
 sold for cash Into a mere deposit for examination." 
 
 But evidence of custom has been admitted to show that a delivery to a car- 
 rier in the usual and ordinary course of business transfers the property to the 
 purchaser, and that the risk from that time is the risk of the purchaser; ' that in 
 the boot and shoe trade, when shoes are ordered of a manufacturer by a pur- 
 chaser at a distance, it is the usage of the business, where no special mode of 
 conveyance is mentioned by the purchaser, for the manufacturer to take the 
 goods to a certain point at his own risk, and there deliver them to some regular 
 line of packets running to the purchaser's place of business, and take duplicate 
 bills of lading, and forward one of them to the purchaser by mail, and from that 
 time the delivery is complete and the purchaser takes the risk of loss ; '» that the 
 seller of goods who delivers them to a railroad company, to be first transported 
 
 ' Osborn «. Gantz, 6 N. Y. B40; Ferguson 15 Gray, 229; Bowen v. Bark, 13 Pa. St. 146; 
 
 ». Clifford, 37 N. H. 86; Refining, etc., Co. v. Pitts v. Owen, 9 Wis. 153. 
 
 Miller, 7 Phila. 97 ; Harding v. Metz, 1 Tenn. a 3 Sandf. 203 ; ». c. 5 N. Y. 42. 
 
 Ch. 610; Gardner v. Clark, 21 K. Y. 399; •! But see Haggerty v. Palmer, 6 Johns. 
 
 Eussell V. Minor, 22 Wend. 659; Acker ». Oh. 437. 
 
 Campbell, 23 Wend. 372. i Suydam v. Clark, 2 Sandl. m. 
 
 ? Smith V. Lynes, 3 Sandf. 203; ». c. 5 N. « Pleasants v. Pendleton, 6 Rand. 473; 18 
 
 Y. 42; Chapman v. Lathrop, 6 Cow. 110; Am. Deo. 728. 
 
 Lupin V. Marie, 6 Wend. 77; Furniss «. ' South- Western Freight & Cotton Press 
 
 Hone, 8 Wend. 247; The People v. Haines, Co.u. Stanard, 44 Mo. 71; Oberii. Carson, 63 
 
 14 Wend. 540; Carlton v. Sumner, 4 Pick. Mo. 209. But see Furniss v. Hone, 8 Wend. 
 
 516; Smith v. Dennle, 6 Pick. 362; Hus- 247; Stanton t). Small, 3 Sandf. 230. 
 
 sey V. Thornton, 4 Mass. 405; ShauUor v. a Haskins ». Wari'en, 115 Mass. 514. 
 
 Houston, 1 Donio, 51; Buck v. Grimshaw, » Magradero. Gage, ;i3 Md. 344. 
 
 1 Edw. Oh. 144; Paul ti. Reed, 53 N. H. 136; » Pfltnam t>. Tillotson, IS Metu. 617. 
 Mixer v. Cook, 31 Mo. 840; Farlow v. EIUb, 
 
VEMDOK AM> PUKCHASEK. 315 
 
 Payment. 
 
 on their road and then forwarded by steamboat, should take out an internal 
 bill of lading, and send it to the purchaser at or about the time of dispatching 
 tTie goods.' The custom of merchants in Galveston, in dealing with country 
 merchants, that the seller has not performed his duty or parted with the prop- 
 erty In the goods until he has boxed them, delivered them to a carrier, and. 
 taken a bill of lading, was admitted in a Texas case to ascertain when the prop- 
 erty in goods sold to a country merchant passed.' 
 
 In Meldrum v. Snou) ' it appeared that, as beer cannot be removed in warm 
 weather without injury, there was a custom among brewers and retailers for the 
 former to deliver to the latter in the spring as much beer as he expected to 
 sell in the ensuing season, in barrels belonging to the brewer, which are to be 
 returned to him when emptied. The retailer pays for all that he sells during 
 the season, at the price at which it was originally furnished, but if any of it 
 becomes sour or stale, or is lost by the bursting of casks, fire, or other 
 casualty, the loss falls on the brewer ; and if any beer remains unsold at the end 
 ■of the season, the retailer has the right to return it to the brewer, but the latter 
 has no right to take it without the retailer's consent. Payment is never made In 
 advance ; the brewer's price never varies, and the profits of retailing belong 
 exclusively to the retailer, who bears all losses of bad debts. It was held that, 
 under these circumstances, beer so delivered was not liable to attachment as the 
 property of the retailer.* See also Priestley v. Prattfi 
 
 § 166. Payment. — Where no time for the payment of goods sold and deliv- 
 ered is fixed by the contract, the price becomes due and payable as soon as the 
 delivery is completed.* But where a uniform custom and course of dealing on 
 the part of the seller to demand payment at the close of each month is" shown, 
 and this custom is known to the purchaser, an implied contract arises that 
 credit shall be given until the close of the month for all materials delivered 
 daring the month.' 
 
 The possession, by the acceptor, of a ctoaft drawn with a blank for the name 
 of the payee,' or the production of defendant's order in favor of a third person,' 
 
 > Johnson v. Stoddard, 100 Mass. 306. Bxch. 98; Bobbins v. Harrison, 31 Ala. 160; 
 
 » Woods V. Half, 44 Texas, 633. And qee Metz v. Albreoht, 62 111. 491 ; Fitzpatrick o. 
 
 Haggerl^ v. Palmer, 6 Johns. Oft. 437; Pain, S Coldw. 15; South-Western Freight 
 
 Keeler».Pield,lPaige.312;Furm8S».Hone, Co. o. Plant, 45 Mo. 517; Coil v. Willis, 18 
 
 8 Wend. 247. Ohio, 28 ; Davis i>. Adams, 18 Ala. 264 ; Cas- 
 
 3 9 Pick. 441. sell v. Baokrack, 42 Miss. 56; Goldsmith v. 
 
 < "it being beneficial to the community to Bryant, 26 Wis. 34; Brehen d. O'DonneU, 
 
 tatroduce the use ol beer," said the court, 34 N. J. L. 408; Miller v. Jones, 66 Barb. 148. 
 «' public policy would justify us in favoring ' Phoenix Mutual Ins. Co. v Batohen, 6 
 
 the custom." Bradw. 621. And see Salmon Falls Man. 
 
 s Ante, p. 201. And see Doyle v. Lasher, Co. v. Goddard, 14 How. 446 ; Austin i>. Bing- 
 
 16 Upper Canada C. P. 263. ham, 31 Vt. 577. 
 
 'Street », Blay, 2 Barn. * Adol. 456; « Close «. Fields, 9 Texas, 422. 
 
 Hoadly v. MeLaine, 10 Bing. 482; Rugg v. » Zeigler ». Gray, 12 Serg. & E. 42; Blount 
 
 Minnett, 11 East; 210 ; Chambers v. Miller, 13 v. Starfcey, 1 Tayl. 110 ; s. c. 2 Hay w. (N. 0.) 
 
 C. B. fN. s.) 125; Martinet^ v. Kitching, L. 75; In re Penny, 14 La. An. 194; Weidner o. 
 
 E. 7 Q. B. 436; Castle v. Playlord, L. B. 7 Sohweigart, 9 Serg. & B. S35. 
 
316 IN DIl-'FEUKNT RELATIONS AND OCCUPATIONS. 
 
 Vendor and Purchaser. 
 
 is prima facie evidence that the draft had been in circulation, and had been taken 
 up by the acceptor, or of payment according to its tenor. But this presumption 
 may be rebutted by proof showing the possession as acquired without pay- 
 ment — as, by a custom to leave drafts with the payee for acceptance.' So, in 
 an action by a bank against one of its customers, it is competent to show the 
 custom of the bank to enter payments on account of an indorsement on the 
 indorser's bank-book, in order to rebut the presumption that such an entry was 
 a deposit, and not a payment.' And a custom for the merchants in a certain 
 city to retain the notes and bills of their country customers, paid by them, until 
 a settlement at the end of the year, is admissible.' The presumption that making 
 a negotiable note extinguishes the original demand, may be overcome by proof of 
 a contrary usage.* 
 
 The burden of proof of payment of a debt is upon the debtor. As a general 
 rule, the mere fact of mailing the amount of money due the creditor, in. a letter 
 addressed to him at his place of business or his residence, in the absence of any 
 directions by him to so remit it, is not prima facie evidence of payment ; » and 
 this is so, even though the letter was registered.^ But, to overcome this presump- 
 tion, the debtor may show either an express direction from the creditor to so 
 remit, or a usage and course of dealing from which such an assent may be 
 inferred. Then the transmission is at the risk of the creditor. Thus, it was 
 said by Lord Kbnyon in an old case : " Had no directions been given about the 
 mode of remittance, still this being done in the usual way of transacting busi- 
 ness of this nature, I should have held the defendant clearly discharged from the 
 money he had received. It was so determined in the Court of Chancery forty 
 years since."' 
 
 In the absence of contract, there is no implied agreement on the part of the 
 purchaser to pay the expenses of packing the goods, or otherwise putting them 
 in order for delivery .« But evidence of usage is competent for the purpose of 
 showing which party is chargeable with the expense of packing, wrappers, and 
 cases ; ' and in an action between a manufacturer of picture-frames and a dealer 
 in them, the dispute being as to which should pay freight on frames sold to the 
 latter by the former, evidence of a usage between manufacturers and dealers in 
 the place where the goods were made and sold that the manufacturers should 
 pay freight, was held admissible.'" 
 
 § 167. Interest — When allowed by Custom. — Interest, without an agreement 
 therefor, is not allowed by law upon unliquidated accounts for goods, wares, 
 
 ' Close V. Fields, 9 Texas, 422. And see , First National Bank v. McManigle, 6» 
 
 Alvord V. Baker, 9 Wend. 32;S; Rico v. Isham, p^ gj jgg 
 
 4, Abb. Api). Dec. 37. ; Wai-wicke v. Noakes, Peake N. P. 68; 
 
 2 Slierci- V. Easton Bank, 33 Pa. St. 13b. Hawkins v. Rutt, Peake N. P. 1137; Gunieyi). 
 
 » Kemy v. Duffee, 4 Ala. 365. And see Howe, 9.Gray, 404. 
 
 Winans r. Hasscy, 48 Ual. 634. 8 oole v. Kerr. 20 Vt. 21 ; Burr v. WiUiama, 
 
 * Varncr v. Nobleborougli, 2 Me. 121. 23 Ark. 244. 
 
 » Crane v. Pratt, 12 Gray. 348 ; Walter v. » Cole v. Kerr, mpra; Robinson v. United 
 
 Haynes, Ryan & M. 149; Wakcfleld v. Lith- States, 13 Wall. 363. 
 
 gow, 3 Mass. 249. lo Howe v. Hardy, 106 Mass. 329. 
 
VEMDOK AND PUKCHASER. 317 
 
 Inlfiest Allowed rfy Custom. 
 
 and merchandise;* for -work done,' or on book-accounts.* In Henry v. Bisk,* 
 decided In the Supreme Court of Pennsylvania in 1788, the court refused to 
 allow evidence of a custom of the trade to charge interest in such cases. The 
 action was brought for goods sold and delivered in the city of Philadelphia, the 
 plaintiff having charged interest upon his account after six months' credit. The 
 right to do this was the only question in the cause, and the plaintiff's counsel 
 offered to prove by witnesses that it was the custom of the trade in Philadelphia 
 to allow interest under such circumstances. But McKean, C. J., ruled that, 
 interest not being recoverable on such accounts at law, the custom was not 
 admissible, saying: "The point has been repeatedly determined otherwise in 
 this court as well as in the courts of England ; and, therefore, witnesses cannot 
 be admitted to contradict the established principles of the law." But this 
 decision has been long overruled in that State, and the practice of the mer- 
 chants of Pittsburg and Philadelphia to charge interest on their accounts after 
 six months is now judicially noticed in the Pennsylvania courts.* 
 
 And, in a number of cases, evidence of usage has rendered charges for interest 
 under such circumstances recoverable at law.* In one of these it was said : 
 "From the practice which has generally obtained in this State, from the known 
 usage and custom of Mr. Raymond [the creditor], as well as of other merchants, 
 to cast interest on their accounts after six months, we think there was an 
 implied contract on the part of Dr. Isham to pay interest after the usual time of 
 credit."' In another: "We do not think the charge of interest on any part of 
 the account objectionable. The plaintiff proved that the defendant was one of 
 his customers, and that he always charged interest on his accounts after ninety 
 days. The uniform custom of a merchant or manufacturer is presumed to be 
 known to those who are in the habit of dealing with him, and in their dealings 
 are supposed to act with reference to that custom." ^ In another: "Although, 
 
 1 Youqua V. Nixon, 1 Pet. C. Ct. 224; Reid » Koons v. Miller, 3 Watts & S. 271; Watt 
 1). Rensselaer Glass Factory, 3 Cow. 893; 5 v. Hatch, 26 Pa. St. «1; Adams v. Palmer, 30 
 Cow. 589; Adams Express Co. u. Milton, 11 Pa. St. 346. And see Shewel «. Givan, 2 
 Bnsh, 49; Brady v. Wilcoxson, 44 Cal. '2 1; BlacM. 312. 
 
 Hauxhurst v. Hovey, 26 Vt. 544 ; Gilmaii v. ? Eddowes v. Hopkins, Doug. 361 ; Knox v. 
 
 Vaughan, 44 Wis. 646; Marsh v. Frazer, 47 Jones, 2 Ball. 193; Koons ». MiUer, 3 Watts 
 
 Wis. 149; Tucker v. Ives, 6 Cow. 193; Kane & S. 271; Rensselaer Glass Factory «. Reid, 
 
 D.Smith,' 12 Johns. 156; Oonsequa v. Fan- 5 Cow. 611; Esterly v. Cole, 3 N. Y. 502; 
 
 ning, 3 Johns. Ch. 587 ; McKnight v. Dunlop, Bispham v. Pollock, 1 McLean, 411 ; Liotard 
 
 4 Barb. 36. "• Graves, 3 Caines, 216; Selleck v. French, 1 
 
 2 Henry f. Risk, 1 Dall. 265 ; Harrison v. Conn. 32 ; Watt v. Hatch, 25 Pa. St. 411 ; Goit 
 Handley, 1 Bibb, 443; Murray v. Ware, 1 ©.Inhabitants, 2 Cush. 475; Newell ». Gris- 
 Bibb, 325; Van Beuren v. Van Gaasbeck, 4 wold, 6 Johns. 44; Sammis v. Clark, 13 111. 
 Cow. 495 ; Brewer ». Tyringham, 12 Pick. 547 ; 544 ; Hitt v. Allen, 13 111. 592 ; Veiths v. Hagge, 
 Doyle V. St. James' Church, 7 Wend. 178; 8 Iowa, 163; Righton ». Blake, 1 Brev. 169; 
 Goff V. Rehoboth, 3 Cush. 475; Stimpson v. Knight v. Mitchell, 3 Brev. 506; Pearson v. 
 Green, 13 Allen, 326; Palmare. Stockwell, Grioe.S Fla. 214; Lamb ». Klaus, 30 Wis. 94 ; 
 9 Gray, 237 ; Sprague v. Sprague, 30 Vt. 483 ; Morris v. Allen, 14 N. J. Eq. 44 ; Goodman v. 
 Adams Express Co. v. Milton, 11 Bush, 49; Clarke, 66 Me. 280; KermottD.Ayer, 11 Mich. 
 Amee ®. Wilson, 22 Me. 116; Shipman v. 181; Comstoek«.Smith,20Mich.338; Barclay 
 The State, 44 Wis. 458. „. Kennedy, 3 W ash. C. Ct. 350. And see 
 
 3 Day V. Locksvood, 24 Conn. 186; Crosby ante, § 52. 
 
 -». Mason , 33 Conn. 432. ' Raymond v. Isham, 8 Vt. 263. 
 
 <1 Dall. 265. And see Temple «. Belding, a McAllister «. Eeab, 4 Wend. 483. 
 
 1 Root, 314. 
 
318 IN IJIFFKRKNT RELATIONS AND OCCUPATIONS. 
 
 Negligence. 
 
 as a general principle, running accounts do not draw interest, yet if a merchant 
 has been in the general practice of charging interest after a limited period of 
 credit, those who deal with him with a knowledge of that fact are bound to pay 
 interest from the expiration of such period ; and their liability is the same if they 
 have been In the habit of settling their accounts with him, in which such interest 
 has been charged and allowed." • In another, which was a suit on a book- 
 account, it was said : " Evidence may be introduced to show that by the agree- 
 ment or understanding of the parties interest may be charged. Proof of custom 
 is also allowed. As there is no evidence on the point, it is not a case for 
 interest." ' 
 
 Likewise, while on such charges as a forwarding merchant's services for 
 freight, wharfage, and storage, interest is not by law allowed,' usage may 
 allow it.* And where a banker and his customer have carried on their business, 
 as to interest, for a number of years in a particular way, it will be assumed that 
 there is an agreement to that effect, and the principle involved will be held bind- 
 ing in any subsequent disagreement between them.*' A commission merchant is 
 liable for interest on a balance in his hands in favor of his principal, in the 
 absence of proof of a usage of trade to the contrary; ^ and the custom of mer- 
 chants as to when open accounts become due is evidence of the time when the 
 Statute of Limitations begins to run.' In New Jersey, by usage, interest is col' 
 lected on judgments by an indorsement on the execution.* 
 
 X. Miscellaneous. 
 
 § 168. Tlie Question of Negligence as affected by Custom Judge Stokt,' 
 
 in stating the degrees of negligence and the measure of diligence in different 
 relations, says : " Indeed, what is common or ordinary diligence is more a matter 
 of fact than of law. And in every community it must be judged of by the actual 
 state of society, the habits of business, the general usages of life, and the dan- 
 gers as well as the institutions peculiar to the age ; so that, although it may 
 not be possible to lay down any very exact rule applicable to all times and all 
 circumstances, yet that may be said to be common or ordinary diligence, in the 
 sense of the law, which men of common prudence generally exercise about their 
 own affairs in the age and country in which they live. It will thence follow that 
 in different times and in different countries the standard is necessarily variable 
 with respect to the facts, although it may be uniform with respect to the prin- 
 ciple ; so that it may happen that the same acts which in one country or in one 
 age may be deemed negligent acts, may at another time or in another country 
 be justly deemed an exercise of ordinary diligence. It is important to attend to 
 this consideration, not merely to deduce the implied obligations of a bailee in a 
 given case, but also to possess ourselves of the true measure by which to fix the 
 application of the general rule. Thus, in times of primitive or pastoral sim- 
 plicity, when it is customary to leave flocks to roam at large by night, it would 
 
 > Reab i>. MoAlliBter, 8 Wend. 109. e Prico v. MoOonnico, 44 Ala. 627. 
 
 « Crosby v. Mason, 32 Conn. 483. i Hendricks v. Robinson, 56 Miss. 694; 
 
 8 Trotter v. Grant, 2 Wend. 213. Blttnger v. Henderson, 33 Miss. 449. 
 
 * Meech v. Smith, 7 Wend. 315. e Erie R. Co. t>. Aokerson, S3 N. J. L. 34. 
 
 » Moses V. Salt, 82 Beav. 269; Olancarty v « Story on Bail., § 11. 
 Latouche, 1 Ball & B. 420. 
 
KKLILIGENCE. 31& 
 
 How Affected by Custom. 
 
 not be a want of ordinary diligence to allow a neighbor's flock, which is depos- 
 ited with us, to roam in the same manner. But if the general custom were tO' 
 pen such flocks at night in a fold, it would doubtless be a want of such diligence 
 not to do the same with them. In many parts of America, especially in the 
 interior, where there are, comparatively speaking, few temptations to theft, it is 
 usual to leave bams, in which horses and other cattle are kept, without being 
 under lock by night. But in our cities, where the danger is much greater and 
 the temptation more pressing, it would be deemed a great want of caution to act 
 in the same manner. If a man were, in many country towns, to leave his friend's 
 horse in his field, or in his open barn all night, and the horse were stolen, it 
 would not be imagined that any responsibility was incurred. But if in a large 
 city the same want of precaution were shown, it would be deemed in many cases 
 a gross neglect. If robbers were known to frequent a particular district of 
 country, much more precaution would be there required than in districts where 
 robberies were of very rare occurrence. What, then, is usually done by prudent 
 men in a particular country in respect to things of a like nature, whether it be 
 more or less in point of diligence tban what is exacted in another country, 
 becomes in fact the general measure of diligence. And the customs of trade and 
 the course of business have also an important influence. If, in the course of a 
 particular trade, particular goods — as, for instance, coals — are usually left on a 
 wharf without any guard or protection during the night, and they are stolen, the 
 wharfinger or other person having the custody might not be responsible for the 
 loss, although for a like loss of other goods not falling under a like predica- 
 ment he might be responsible. If a chaise were left during the night under an 
 open shed, and were stolen, the bailee might not be liable for the loss if such 
 was the usual practice of the town or place, and yet he might be liable if gi-eater 
 precautions were there usually taken. In short, diligence Is usually proportioned 
 to the degree of danger of loss ; and that danger is, in different states of society, 
 compounded of very different elements. Men intrusted with money might at 
 some times and in some places be required to go armed, when at other times 
 and in other places such a precaution would be deemed wholly unnecessary." 
 In Vaughan v. Menlove,^ Vaughan, J., said, speaking of the evidence of negli- 
 gence: "The conduct of a prudent man has always been the criterion for the 
 jury in such cases ; but it is by no means confined to them. In insurance cases, 
 where a captain has sold his vessel after damage too extensive for repairs, the 
 question has always been whether he has pursued the course which a prudent 
 man would have pursued under the same circumstances." "They must take," 
 said Best, J., in an old case, speaking of bailees for hire, "the same care of 
 property intrusted to them that a prudent man would take of his own prop- 
 erty." ' 
 
 § 169. Same— As alfecjting the Duties of Common Carriers. — In Oass \. 
 Boston and Lowell Railroad Company,* the plaintiff sued to recover the value of 
 a tub of sugar which had been consigned to Mm, and which, a few days after he 
 had received notice of Its arrival at the defendant's depot at Boston, he paid the 
 
 1 3 Bing. N. C. 468. 436; Lawrence v. McGregor, Wright, 193;. 
 
 2 Bittson e. Donovan, 4 Bam. * Aid. 30. Oook v. Champlain Tra»8p. Co., 1 Denio, 92. 
 Anfi see L.odwicks v. Ohio Ins. Co., 5 Ohio, ' 14 Allen, 448. 
 
320 IK DIFFEKENT RELATIONS AND OCCUPATIONS. 
 
 Negligence. 
 
 freight upon and received an order for its delivery. Upon calling for the sugar 
 at the freight depot, he was informed, after search for It, that it could not be 
 found, and had probably been stolen. On the trial, it appeared that at the time 
 when the sugar was discovered to be missing it had been about eight days in the 
 depot, where a number of men were employed in attending to the unloading and 
 delivery of freight, and the defendants offered to prove that the same care was 
 exercised in relation to this property which was usually exercised in Boston by 
 other railroad corporations in the case of similar property. This evidence the 
 trial judge excluded, and the jury returned a vetdict for the plaintiff. On appeal 
 to the Supreme Judicial Court of Massachusetts, the judgment was reversed, the 
 court saying : "If the defendants exercised due and ordinary care in the custody 
 of the property, they cannot be charged for its loss. What constituted such 
 care was a question of fact, to be judged of with reference to all the circum- 
 stances, and especially with reference to the degree of care which other persons 
 engaged in similar business in the vicinity were in the habit of bestowing on 
 property similarly situated. The standard of ordinary care varies, necessarily, in 
 different localities. One degree of diligence would be required for the city and 
 a less or greater for the country, depending on a great variety of circumstances. 
 The defendants offered to prove that there was exercised by them in relation to 
 this property that care which other railroad corporations in Boston usually 
 exercised in relation to such property. The court excluded this evidence, and on 
 this ground the exceptions are well taken." Lichtenhein v. Boston and Providence 
 Bailroad Company^ was a suit against the defendants as warehousemen, for 
 the non-delivery of property in their charge, the defence being that it had been 
 fraudulently taken from them without any negligence on their part. On the 
 trial, it was shown that when merchandise was delivered from the depot, the 
 name of the person to whom it was delivered was inserted, in pencil, on the mar- 
 gin of a book kept by the defendants, and that this was the only evidence taken 
 by the defendants of the delivery. The plaintiff contended that this was a 
 careless method of doing business, and offered evidence to show that all the 
 other railroad companies in that city took written receipts from parties receiving 
 property from them. This evidence was excluded, and the defendants had a 
 verdict, which was afflrmed on appeal. The Supreme Court refused to consider 
 the ruling as material, for the reason that the jury had found that the property 
 of the plaintiff had been abstracted from the defi:i!dants' custody, and not that 
 it had been delivered to the wrong person. H?id the latter been the company's 
 defence, the case would have been different. "As to the ruling of the presiding 
 judge excluding the testimony offered by the plaintiff tending to show that 
 other railroad companies require written receipts from those to whom goods are 
 delivered from the warehouse of the company, and that such mode was a better 
 one than that of the defendants, which was writing the name, in pencil, of the 
 party who received an article, in the margin of the book, against the /article 
 delivered, we are of opinion that it furnished no ground for a new trial. If the 
 case had been one of actual delivery to a third person by an agent of the defend- 
 ants, and the question had been whether the mode of defendants furnished equal 
 security for ascertaining to whom the article had been delivered, the question 
 whether a general usage of railroads in this matter might not have been admis- 
 
 » U Cush. 70. 
 
NEGLIGENCE. 321 
 
 Common Carriers. 
 
 sible to show negligence, might have required further consideration. But to the 
 present case the proposed evidence was wholly irrelevant. There is nothing in 
 the case to show that any delivery of the property took place as between the 
 ■defendants and any individual. If their mode had been like that of other com- 
 panies, yet no receipt would have been taken by them, because, upon their 
 hypothesis, there had been no delivery. The position of the defendants, on the 
 •contrary, is that the goods were fraudulently abstracted from their custody." 
 In Loveland v. Surke,^ the plaintjffs employed the defendant to transport a hogs- 
 head of molasses from Boston to their store in Somerville, and in delivering the 
 hogshead at the store, while it was being rolled on skids from the wagon to the 
 sidewalk, one of the skids broke, and the contents of the hogshead were lost. 
 The skids were furnished by the plaintiffs at the defendant's request, and the 
 breaking was caused by a piece having been sawed from the under part of it. 
 On the trial, the defendant offered to prove that it was the universal and well- 
 known custom in Somerville for grocers to keep and furnish skids whereon to 
 remove heavy articles from common carriers' wagons to their stores, and for 
 carriers not to furnish skids, and that it was the plaintiffs' duty in this case to 
 furnish them. He likewise contended that the skids appeared to him to be suit- 
 able, and that the defect was unknown to him, and i-equested an instruction that 
 if the jury should find that it was the duty of the plaintiffs to furnish proper 
 skids upon which to receive the hogshead, and that those so furnished appeared 
 to be suitable, he was not liable. This instruction was refused, and the jury 
 were told that it was the duty of the carrier to deliver the property on the 
 premises of the plaintiffs, using proper means and instruments ; that the mere 
 fact that the usage was that the grocers should furnish the skids did not alter 
 the duty of the defendant to make a proper delivery ; and that he was bound to 
 use proper skids, even though they were furnished by the plaintiffs. " The plain- 
 tiffs were not warrantors that the skids were sufficient to carry the hogshead to 
 the sidewalk on the plaintiffs' premises. If there was a latent defect in the 
 skids, known to the plaintiffs and not known to the defendant, and not observ- 
 able by ordinary skilful observation before using, the defendant would not be 
 liable. The question as to usage, though of some importance, is not decisive 
 of the case ; but the previous considerations must also be regarded. The mere 
 fact that the skids were furnished in compliance with usage by the plaintiffs 
 does not alter the period when the delivery is completed. The period of com- 
 pleted delivery by the carrier is the same, whether the skids are to be furnished 
 by the plaintiffs or by the defendant." The Supreme Court held this charge to 
 be wrong. "The jury should have been instructed," said Ames, J., "that if 
 they were satisfied of the existence of a long-continued, established, and noto- 
 rious usage for grocers in that locality to furnish the planks or wooden supports 
 for unloading at their shops heavy articles from carriers' wagons, and if the 
 damage in this instance was occasioned by defects in the appliances furnished 
 for that purpose by the plaintiffs, especially if those defects were not so mani- 
 fest that the defendant saw, ox with reasonable attention would have seen them, 
 the action could not be maintained. A usage to furnish the skids must mean 
 suitable and proper skids, capable, with reasonable use, of sustaining the weight 
 of the articles which were to rest noon them." In another case, a railroad com- 
 
 120 Mass. 140. 
 
 ai 
 
322 IN Ulfi'lSltKNT KEIiAXlONS AND OCCUl'ATlONiS. 
 
 Negligence. 
 
 pany was sued for a personal injury received by the plaintiff through the care- 
 lessness of one of its servants in wheeling a crate of crockery along the- 
 platform of its freight-house. The plaintiff had gone to the freight-house to 
 receive some goods of his employer, and while attending to this business was 
 injured by the crate of crockery, which was being moved by one Monneghan, a 
 servant of the defendants, to another wagon. The crate had been in the freight- 
 house for a day preceding, awaiting the owner, and the defendants contended 
 that their duty was then at an end, and that they were not liable for the subse- 
 quent unauthorized act of Monneghan in moving it to the wagon, nor for any 
 damage caused thereby. On the trial, the plaintiff introduced evidence to show 
 that it was the ordinary custom of Monneghan to move heavy articles from 
 inside the freight-house to the platform when they were called for, and deliver 
 them there; and the judge instructed the jury that "if it was Monneghan's 
 ordinary custom, when heavy freight like this crate of crockery was called for 
 by the consignees after it had been deposited in the freight-house, to remove it 
 to the platform outside, then this would become the service of the defendants, 
 even if their duty had ceased as to the delivery of the goods." In the Supreme- 
 Court this instruction was held incorrect. " It is difficult to see," said Smith, 
 J., " how, after the defendants' duty had ceased as to the delivery of freight, any 
 custom or practice of Monneghan's in assisting consignees in removing or 
 loading their goods can affect the defendants. The defendants are only respon- 
 sible for their servant's acts when acting within the line of his duty, and within 
 the line of their duty to their consignees. When that duty has ended, they are 
 no more responsible for his acts and doings than for the acts and doings of 
 any other person." ' Where goods in the hands of a carrier were injured 
 while he was descending a river with two flat-boats lashed together, the fact 
 that this was a customary mode of navigating the river was held relevant on the 
 question of negligence.' And a custom of the officers of a boat on the river to- 
 notify passengers of their arrival at their places of destination will render the 
 carrier liable for taking a passenger beyond his destination, who had failed to 
 land at the proper place through not receiving the customary notice.' Where a 
 railroad company was sued for an injury to a passenger, received while alighting 
 from the train at the depot, and the negligence charged was the failure of the 
 train to stop a sufficient length of time to enable the plaintiff to alight in safety, 
 evidence of the usual and customary period of the train's stopping at the place 
 was admitted. "We think it was proper," said the Supreme Court, "for the 
 purpose of showing what the defendants had considered a reasonable time to be 
 allowed the passengers to leave at tbat station; aad if the time allowed for that 
 purpose on this occasion was shorter than the usual and customary time, it 
 would tend somewhat to show that a reasonable time was not allowed."* In an 
 action for an injury to a passenger, one of the questions being whether a passen- 
 ger is bound to wait in the depot until the arrival of the train, or may go onto 
 and stand upon the platform while it approaches, the usage of other passengers 
 there is relevant.* 
 
 ' Jewell V. Railway Co., 65 N. H. 84. • ruller v. Naugatuok U. Oo.,21 Conn. 657. 
 
 a Johnson ». Lightsey, 34 Ala. 169. •■ Caswell v. Boston, etc., E. Co., )»8 Mass. 
 
 • Oarson v. Leathers, 11 Cent. L. J. 167. 191. 
 
NEGLIGENCE. 323 
 
 Biiilrnents. 
 
 §170. Same — As affecting the Question of Diligence in other Bail- 
 ments. — In Maxvoell v. Eason,^ the action was to recover the value of a quantity 
 of cotton delivered by the plaintiff to the defendant, the owner of a cotton-gin, 
 and which was destroyed by fire through, as was alleged in the declaration, the 
 negligence of the defendant. The defendant denied that he had been guilty of 
 negligence, and the evidence showed that the fire was caused by the falling of 
 an open lamp among the cotton from the hands of the defendant's son, while 
 proceeding, by his order, to hang up in the gin-house a pair of steelyards. Oni 
 the trial, one of the plaintiff's witnesses, an owner of a gin-house in the same 
 county, was asked the following questions : " What is the general custom of gin- 
 holders in regard to carrying light about their gin-houses when they contaim 
 cotton? What is your custom in this respect? Is it customary among gin- 
 holders to carry, or permit to be carried, in their gin-houses, when they contain 
 cotton, an open lamp with oil, to afford light ? " These questions were excluded 
 by the trial judge, and this, on appeal, the Supreme Court held to be error. 
 "The question of fact for the determination of the jury," said Saffold, J., 
 " was whether the defendant used ordinary care, or that degree of caution which 
 is due from a man of common prudence in the same situation or in lite employ- 
 ment. The necessary and usual caution for the security of gin-houses, and how 
 far it is deemed prudent to risk fire in or near them, is not presumed to be 
 equally known to all persons. If it were so to be regarded, the evidence was 
 inadmissible. But it is presumed prudent gin-holders have something like a uni- 
 form practice in this respect. If so, every one who sends his cotton to a gin is 
 entitled to expect the same care and prudence for the security of his property. 
 Then, to enable the jury to decide whether this defendant used that degree of 
 care which is usual with a majority of prudent men in the same business or 
 trade, evidence of the custom of such persons generally was relevant and 
 admissible, and should have been permitted to go to the jury. The acts of the 
 defendant's son, in his immediate employment and under his direction, can only 
 be regarded as the act of the defendant himself. The evidence respecting the 
 individual custom of the witness as a gin-holder, unless it corresponded with 
 the general usage, was immaterial; but the usual custom of prudent men in 
 that respect, including that of the witness, was legal testimony." Brown v. 
 Hitoheoek " somewhat resembles this case. The plaintiff delivered to the defend- 
 ant a quantity of palm-leaf to be worked into hats, or returned when called for; 
 but when the plaintiff demanded it, it was found to be spoiled by heat and 
 mould, occasioned from the palm-leaf not having been taken out of the sacks in 
 which it was delivered, and exposed to the air. On the trial of an action for the 
 loss, the defendant's evidence was to the effect that he kept his own palm-leaf 
 stored in sacks, and no injury had resulted therefrom, and that the plaintiff's 
 palm-leaves were damp when he received them. It was held proper for the 
 plaintiff to show that it was usual and customary among dealers to put leaf in 
 sacks in a damp state for market that It was usually bought and sold in that 
 way, and that it was the custom of manufacturers to take the leaf from the 
 sacks and expose it to the air. So, a miller employed to grind grain must use 
 the diligence of millers of neighboring mills.^ Where the question is as to the 
 
 ' 1 Stew. 6U. * 28 Vt. 452. bility of a warehouseman lor goods stolen 
 
 ' McEibben v. Bakers, 1 B. Hon. 122. As from his warebouss, see ehenoirith «. Dick- 
 to the CQStom of storing, as aSeoting the lia- inson, 8 B. Men. 1.56. 
 
324 XX UIFi'ERENT RKLAI'IONS AND OCCUPATIONS. 
 
 Kesligence. 
 
 diligence of an agent in making a sale, evidence of usa^e is competent;' and, 
 on a similar principle, where an agent was sued by his principal for the sum of 
 $20,000 belonging to the latter which he had collected, and his defence was 
 that it had been stolen from him, and it appeared that the money was at the 
 time of the loss kept in an iron safe in a room usually occupied by two persons, 
 but then left unguarded and not very secure. It was held competent for him to 
 show that custodians of money do not usually look to doors or windows for 
 protection, but to their vaults and safes.^ The presentment of a check may be 
 shown by usage to be in time, which without such proof would be deemed to be 
 negligently delayed.^ And where the question was whether a guest at a hotel 
 had been guilty of negligence in leaving the key In the door of his room. In 
 which was a large sum of money, evidence of the usage of guests at the hotel 
 of leaving keys in the doors of their rooms was held to be relevant.* 
 
 In like manner, it is universally held that the drivers of horses and carriages 
 on the highways,^ and the masters or pilots of ships and steamboats on the 
 waters,^ must follow the customary mode of passing each other, and a failure 
 to comply with such custom will amount to negligence. 
 
 § 171. Same — As affecting tlie Contributory Negligence of a Servant. — 
 Several recently reported cases discuss the force of a custom on the question of 
 the contributory negligence of a servant in an action against the master for 
 injuries received while in his employ. In Berg v. Chicago, etc., Bailway 
 Company,'' the plaintiff, who was an employee of the defendant company, 
 engaged as a trackman, removing snow and ice from the track in the depot 
 yard, was injured by a car which, detached from the locomotive, had been 
 shunted along the track on which he was working. There was a brakeman on 
 the car, who testified to having called out to the plaintiff as the car approached 
 him, but the latter did not hear him. On the trial, the defendant offered evi- 
 dence, which was allowed, of a custom, known to the plaintiff, that in switching 
 cars In the depot yard it was not the duty of the railway company to have a 
 brakeman or other person upon each train of cars in motion, or upon each car 
 which was being moved separately, to give warning to the men at work in the 
 yard of approaching danger, but that a car might be sent along any of the 
 tracks, attached to or disconnected from a locomotive, as the exigencies of the 
 business might require, without any one upon it, and in such case the men 
 employed in the yard must look out for themselves. That is to say, that it was 
 not, per se, negligence of the company or its employees thus to move a car in its 
 
 ' Bradford v. Drew, 5 Mete. 188. » Morrison ». General Steam Nav. Co., 8 
 
 = Wright V. Central B. Co., 16 Ga. S8. Exch. 733; General steam Nav. Co. v. Morri- 
 
 » Turner v. Bank of Fox Lake, 4 Abb. App. son, IS C. B. 581 ; Barrett v. Williamson, 4 
 
 Deo. 434 ; 23 How. Pr. 399 ; Johnson v. Bank McLean, 595 ; Myers !•. Perry, 1 La. An. 373; 
 
 of North America, 5 Robt. 554; 45 N. Y. 67; The City of Washington, 92 U. S. 31; The 
 
 Smith n. Miller, 52 N. Y. 645; 42 N. Y. 171; Clement, 2 Curt. 363; Jones v. Pitcher, 3 
 
 Kelty I), Second National Bank, 52 Barb. 328. Stew. & P. 135; Boyoe v. The Empress, 3 
 
 ■"Berkshire Woollen Co. v. Proctor, 7 West. L. J. 174 ; Drew ». The Chesapeake, 2 
 
 Gush. 417. Se • Barber p. Brace, 3 Conn. 9. Doug. 33; Harding v. The Maverick, 5 L. R. 
 
 ■■ Leame v. Bray, 3 East, 593; Tueley v. 106; Domingo v. Merchants' Ins. Co., 19 La. 
 
 Thomas, 8 Car. & P. 104 ; Bolton v. Calder, 1 An. 481 ; Sampson v. Hand, 6 Whart. 324. 
 
 Watts, 3fiO. ' Sup. Ot. Wis., NoTember, 1880. 
 
NJiGJLIGENCE. 3jJ5 
 
 Master and Servant. 
 
 yard unattended, and the peril of injury from a car so moving was, by the cus- 
 tom, one of the perils of the service, the risk of which was upon the servant. 
 The Supreme Court, while holding the custom fully proved and properly ad- 
 mitted, ruled that it was not applicable to the case at bar. " The custom," 
 said Lyon, J., " has little significance in this case, for the reason that there was 
 a brakeman on the car, who saw the plaintiff at work on the track upon which 
 the car was moving, a sufficient time before the injury to have stopped the car 
 before it reached tlie plaintiff, or to have warned him of its approach. The 
 custom does not relieve the defendant of liability for the negligence of its other 
 employees. It did not relieve the brakeman of the duty of stopping the car or 
 warning the plaintiff of its approach, or cast upon the plaintiff the risk of his 
 failure to do so. No such custom was referred to in the question proposed, and 
 none was proved. On the contrary, the evidence tends to show that the brakeman 
 should have given the trackmen some notice or warning of the approach of the 
 car. On grounds of public policy, a custom which would permit the brakeman 
 to let the car run upon the trackmen, when he knew their peril and could easily 
 avoid it, can hardly be sustained as a valid custom." In Hughes v. Winona, 
 etc., Railroad Company,^ the plaintiff was employed as a night-brakeman in the 
 defendant's yard where trains were made up. Among other things, it was his 
 duty to assist in making up trains and to couple cars. Por the latter purpose it 
 was necessary for him to go between cars in motion, it was defendant's cus- 
 tom, when necessary, to have the fire-boxes of its engines cleaned of ashes 
 at any place upon the track in the yard where an engine chanced to stand, 
 when the engineer or fireman thought best to take them out. The ashes were 
 usually allowed to remain where they dropped upon the track, from one to four 
 hours, until removed or scattered by men employed by defendant to keep the 
 yard in order. In attempting to couple two cars, one of which was in motion, 
 the plaintiff stepped upon a heap of ashes which had been left upon the track in 
 the manner above mentioned, and, the ashes being wet, he slipped and fell, and 
 the moving car passed over his leg, crushing it so that it had to be amputated. 
 On the trial, the jury were instructed that a servant continuing in a service 
 with full knowledge of its dangers assumed all the risks, and could not recover 
 damages for an injury, even though the mode of conducting the business was 
 careless ; that if the custom of the defendant in disposing of the ashes was 
 notorious, so that the plaintiff would be deemed to have knowledge of it, he 
 would be considered in law to have voluntarily assumed all the risks incident 
 to that way of managing the business, and could not recover even though the 
 custom was unsafe. The instructions were, approved on appeal. " Their 
 effect, as applicable to the facts of this case," said the Supreme Court, " 1^ that 
 if an employer's unsafe and careless custom of conducting business is open to 
 observation, so that it can be reasonably observed by the senses, and the 
 employee has ample and reasonable means of using his senses for the purpose 
 of observing the custom, it is his own fault and negligence if he does not 
 observe it, and he stands upon the same footing as if he had actual knowledge 
 of the custom referred to; so that the risk to him from such custom is his own, 
 and not that of the employer. This is about the same thing as saying that the 
 employee must make reasonable use of his senses to avoid danger and injury in 
 
 Sup. Ct. Minn., September, 1S80. 
 
326 IN DIFFERENT KELATIONS AND OCCUPATIONS. 
 
 Neglifience. 
 
 the course of his employment ; or, in other words, that he must not be negli- 
 gent. ♦ * * Under the instructions of the court, the jury, in rendering a 
 verdict for the defendant, must be taken to have found that the defendant was 
 not guilty of negligence in depositing the ashes upon the track and suffering 
 them to remain there ; or that if in so doing it was guilty of negligence, then 
 the plaintiff was, or ought to have been, cognizant of defendant's custom 
 to so deposit ashes upon the track and suffer them to remain there for a time, 
 and therefore took the risk of such negligence upon himself by continuing in 
 defendant's employ." In Flannagan v. Chicago, etc.. Railroad Company,^ the 
 plaintiff's injury was received while climbing on a car which was being taken 
 to the company's repair-shops for inspection and repair. The trial judge non- 
 suited the plaintiff, for the reason that it was quite apparent from his duties 
 that he must have known that the service of taking the defective cars to the 
 repairing-shops was more hazardous than the usual employment of a brakeman 
 on the road ; that he knew it was the custom in the yard to take all cars which 
 had been used for bringing ore to Escanaba down to the repair-shops for inspec- 
 tion ; knew it frequently happened that cars which were out of repair were taken 
 down there together with cars which did not need repair, and that a knowledge 
 of these facts imposed upon him more care than would have been incumbent 
 npon him under other circumstances. Consequently the judge held that where 
 the plaintiff sought to climb upon cars which he was thus engaged in handling, 
 and which were liable to be out of repair, he was bound to realize that fact, and 
 not attempt to step upon the jaw-brace without looking to see where he was 
 placing his foot, and not take it for granted that the brace was there in its 
 place because braces were usually on the cars. In the Supreme Court, the 
 force of this argument was admitted by Cole, C. J., who delivered the opinion 
 of the court, but the judgment was affirmed on the ground that there was no 
 sufficient evidence of negligence on the part of the company to take the case to 
 the jury. "When this case was here on a former appeal," said the court, "it 
 was decided that no negligence on the part of the company could be predicated 
 upon the delay in removing the broken car from the end of the spur-track, 
 where it was broken. It was also decided that the law did not impose upon the 
 defendant the duty of repairing the car upon the track where it was broken, but 
 that it had the clear right to remove it to its repair-yard, where such work was 
 usually attended to. These propositions would seem to be so well founded in rea- 
 son and common sense as to need no illustration or argument to support them, 
 for a moment's reflection must satisfy any mind that it would be practically 
 impossible for a railroad company to repair its broken cars along the line of its 
 road where they might happen to be wrecked. Machinery, appliances, together 
 with skilled workmen, are generally needed to make repairs ; and hence there 
 is a necessity for removing broken cars to shops or yards where these can be 
 secured. It is true, the testimony shows that the broken brace on this car 
 might have been repaired on the track wliere it stood; but it appears the com- 
 pany had a rule or custom of sending all cars, after they were unloaded of ore, 
 down to the repair-shops for inspection. This would seem to be a resonable 
 way of doing business, and the custom was well known to the plaintiff." So, 
 in an action by a brakeman against a railroad company to recover damages for 
 
 1 Sup. Ct. Wis., November, 1880. 
 
NEGLIGENCE. 327 
 
 Master and Servant. 
 
 ^ personal injury while in Its employ, occcasioned by a want of ballast ou a 
 side-track on which he went, where the company offered to prove that it was 
 customary for railroad companies to have in use unballasted side-tracks, which 
 -evidence the court refused, this was held to be error.' So, in an earlier case,' 
 the plaintiff's intestate was a brakeman, and was killed while uncoupling cars 
 when in motion. The train-men, of whom he was one, had established a custom 
 ■of uncoupling the train while in motion, at this particular station where he was 
 killed, for their own convenience. The court held that no recovery could be 
 had for injuries received while performing such a duty, because the deceased 
 must be regarded as having assumed the risk incident to such a customary, 
 although hazardous employment. "If," said Day, C. J., "the deceased had 
 not himself contributed to the establishing of the custom, and remained in de- 
 fendant's employ with knowledge of its existence, without complaint or protest, 
 iind voluntarily taken upon himself the particular act which occasioned his 
 death, our conclusion would be different." On the other hand, in a New York 
 case,' where a brakeman was killed while riding on the locomotive, and the 
 rules of the company prohibited brakemen from leaving their posts while the 
 train was in motion, but the evidence showed that it was customary on the road 
 for brakemen to ride on the engine, and it did not appear that the deceased was 
 aware of the company's rules, it was held that his non-observance of them was 
 not a violation of duty ; that it could not be assumed that his duty required him 
 to be at all times at the brake, or at any particular place upon the train, or that 
 to be upon the engine, in accordance with a customary practice, was a violation 
 therof ; and that the evidence was sufficient to authorize the submission to the 
 jury of the question whether deceased was rightfully upon the engine when the 
 accident happened, and to sustain a finding in favor of the plaintiff. And in a 
 Wisconsin case,* Ryan, J., said : " If a uniform custom of railroad companies to 
 nse structures unnecessarily dangerous to persons employed in operating trains 
 had been proved, we should hesitate gravely before holding that the custom 
 ■could excuse the danger. A positive acquiescence, scienter, of one so employed 
 might indeed take away his right of action for Injury received by such a struc- 
 ture. But there is public as well as private interest. The operation of railroad 
 trains is essentially highly dangerous, and it is a duty of railroad companies, 
 too plain for discussion, to use all reasonable skill to mitigate, tolerating 
 nothing to aggravate the necessary danger. This is not merely a private duty 
 to individuals concerned, but a public duty to the State, concerned in the wel- 
 fare of its citizens. And no custom, however uniform or universal, which 
 unnecessarily exposes railroad emploj-ees to loss of life or limb would seem to 
 satisfy a duty which may be regarded as an Implied condition of their charters. 
 We use the word ' unnecessarily ' advisedly, distinguishing necessity from con- 
 venience. A convenience may be so great as to be regarded as a practical 
 necessity; but a convenience merely to lessen a little the labor of driving 
 ■cattle into cars can hardly rank as a necessity, or excuse such proximity of 
 cattle-chutes to the track as to jeopardize life and limb of persons operating 
 trains." 
 
 ' Pennsylvania Co. v. Hantey, 10 Cent. L. .=piong v. liailroad Co., 60 Barb. SO. 
 
 J. 337. t Dorsey v. Phillips, etc., Construction. 
 
 - Kroy V. Chicago, etc., K. Co., 32 Iowa, 427. Co., 42 Wis. 583. 
 
328 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Nesligence. 
 
 § 172. Customs to excuse Neglieence rejected. — Us;iges set up for the pur- 
 pose of excusing neglect have, however, been rejected in several cases. It ha» 
 been held that a usage will hot excuse a carrier for the neglect of any duty which 
 he owes to a passenger. Thus, in an action against a ferryman for the loss of a 
 horse and wagon while crossing a river on his ferry, it appeared that there was 
 a chain at the forward end of the boat, which, if it had been fastened up, would 
 have prevented the accident. The defendant offered, but was not permitted, to- 
 show that it was the custom at the ferries on that river to have a chain at the 
 end of the boat, but only to put it up at the request of passengers. On appeal, 
 the court held that the evidence of custom was rightly rejected. "The usage 
 sought to be proved would not be a good usage if it prevailed ; it would make 
 the safety of the passenger depend upon his own conduct, and not on the, care 
 and vigilance of the ferryman. If the putting up of the chain was a reasonable 
 and proper precaution, it ought to be put up by the ferryman without a request; 
 if was not so, a request would not make It so." ' And where. In an actioa 
 against a stage-coach proprietor for an injury to a passenger, the negligence 
 alleged being the overloading of the coach, the defendant offered to prove that 
 It was the custom on that route to carry as great a number of passengers as- 
 were on that particular coach at the time of the accident, the evidence was ruled 
 to be inadmissible.'' Similarly, where a number of boxes of books and other 
 property were stowed by a warehouseman on a wharf In close proximity to the 
 water, and by reason of a sudden storm that portion of the wharf was sub- 
 merged and the goods were injured, it was held that evidence that it was 
 defendant's custom to store goods on the wharf was properly excluded, as such 
 a usage could not free him from responsibility.' In an action against a town for 
 an injury caused by a defective bridge, the question as to how the particular 
 bridge compared, as to safety and repair, with other bridges of like character on 
 roads of like amount of travel, is irrelevant ; * and in an action against a railroad 
 company for damages caused by Are from. one of its locomotives, the issue being 
 whether the defendant had used due caution and diligence in preventing the 
 spread of the fire, evidence that It was not the usual practice among railroads in 
 that section of the country to employ watchmen is inadmissible.* In an Alabama 
 case, where a quantity of cotton was ignited by a torch-light on the boat on which 
 it was being carried, in a suit for Its loss the plaintiff asked an instruction that 
 If the torch-light had communicated the fire to the cotton, the latter being so 
 near as to be exposed to the danger, this was negligence, and rendered the 
 defendant liable, "although the jury should believe that it was usual for steam- 
 boats to carry torch-lights," which the court refused. This the Supreme Court 
 held to be error, saying: " The result would not be changed by the existence of a 
 custom to carry torches at night. A custom which would authorize a carrier to 
 carry a torch in such a manner as to endanger the cargo would be violative of 
 law and good faith, and could not receive judicial sanction. If a boat cannot be 
 run at night without the aid of torches, parried in such a manner as to endanger 
 the cotton or freight, to stop is the plato duty of the carrier. Custom cannot 
 
 1 Miller V. Pendleton, 8 Gray, 647. t Bliss v. Inhabitants of Wilbraham, 8- 
 
 » Maury ». Talmadge, 2 McLean, 167, Allen, 564. 
 
 a Mci-cliants', etc., Xransp. Oo. t>. St8ry,50 » Grand Trunk B. Co. v. liioUardson, 91 
 
 ^^- 6- U. S. 454. 
 
NEGLIGENCE. 329 
 
 Custom and Usage. 
 
 relieve from the obligation to bestow, even in guarding against the excepted 
 danger from fire, reasonable care and diligence in taking care of the freight." i 
 So, where the question was whether a railroad company had been negligent in 
 Wowing the whistles of locomotives at crossings so as to frighten horses, it 
 was held incompetent to show a custom on other railroads to blow whistles in a 
 similar way. " If all the railroads in the country," it was said, " adopt any rule 
 or custom which is unreasonable or dangerous, and productive of injury, the 
 generality of the custom cannot, in a given case, in any degree excuse or justify 
 the act." 2 And, therefore, where the negligence imputed to a railroad company 
 was the failure to maintain a flagman at a crossing, the custom of other railroads 
 in maintaining flagmen at crossings was excluded.' In an action against a city 
 for ai} injury to a pedestrian, caused by an opening in the sidewalk, it was ruled 
 that the existence of similar apertures in various other parts of the city for a long 
 period did not show that the alleged defect was not one for which the city was 
 liable if any damage was occasioned thereby.* Therefore, in a subsequent case, 
 where the injury was from a defective crossing, and evidence of the manner In 
 which other cities and towns of similar size, character, and circumstances con- 
 structed their sidewalks and crossings was offered and rejected, the Supreme 
 Court said: "This evidence was properly refused, on the ground that the condi- 
 tion of like structures in other towns and cities is no criterion for the defendant. 
 If other towns and cities choose to suffer such public necessities to be in an 
 unsafe and dangerous condition, their negligence is no excuse or justification for 
 the defendant. The city authorities of Champaign are to do their whole duty in 
 the premises as prescribed by law, with no reference as to what may be done or 
 left undone by the authorities of other cities."* And in another case, an action 
 against a town for an injury received by reason of an uncovered drain, evidence 
 that it was usual for towns in that part of the country to leave drains uncovered 
 was excluded." And a usage cannot excuse an agent for any wilful neglect in 
 securing the property of his principal.' 
 
 In a recent case, where the defendants were street-sprinklers, whose duty it 
 was to keep the hydrants which they used in proper order, and the plaintiff was 
 injured in the winter-time by slipping on a piece of ice formed by water which 
 they had allowed to escape from a hydrant, it was held not competent to show 
 a custom among street-sprinklers that at the close of the season for sprinkling 
 the streets, when the water was supposed to be shut off, the boxes and pipes 
 were not visited until the opening of the season in the spring. It was the duty 
 of the defendants to visit their attachments to the hydrants constantly, if con- 
 stant visits were necessary to prevent overflows ; or, if they chose not to make 
 necessary visits, they were answerable for the consequences. The rights of a 
 party injured through this neglect were not dependent upon such habits as they 
 and others in the same business might choose to adopt.^ 
 
 ' Hibler v. McCartney, 31 Ala. 501. ' City ol Champaign v. Patterson, 50 lU. 61. 
 
 2 Hill V. Portland, etc., E. Co., 65 Me. 438. « Hinckley v. Barnstable, 109 Mass. 126. 
 
 And see Gahagan v. Boston, etc., E. Co., 1 ' Goodenow ». Tyler, 7 Mass. 36; oMe, p. 
 
 Allen, 187. 180. And see Stephens, etc., Transp. Co. v. 
 
 » Bailey v. New Haven, etc., K. Co., 107 Tuckerman, 33 N. J. L. 543. 
 
 Mass. 4%. 8 Crocker v. Schureman, 7 Mo. App. 368. 
 
 < Bacon v. City of Boston, 3 Cush. 171. 
 
330 IN DIFFERENT RELATIONS AND OCCUPATIONS. 
 
 Nuisance — Fraud. 
 
 § 173. To show a Nuisance. — Bradley v. The People^ belongs under the 
 head of usages affecting the law of negligence, rejected by the courts, though 
 in that case the evidence of custom was to show negligence, not to excuse It. 
 The defendants were Indicted, and convicted of maintaining a nuisance. The 
 nuisance was a powder-house, which was built of pine boards, and situated only 
 eleven rods from a highway along which people were constantly passing. It 
 contained several tons of powder ; and one of the sides below the floor was left 
 open. It was proved that people were in the habit of taking shelter from the 
 rain under it, and on one occasion a man was seen smoking there. On the trial, 
 an artilleryman who had been in charge of a government ordnance bureau 
 was asked to describe the ordinary mode of constructing powder-magazines, 
 and testified that they were constructed of earth, frames of heavy timber .being 
 first set in the ground; that no nails or iron was used in any part; that they 
 were protected by outside and Inside doors, and that no person was permitted 
 to enter them except in stocking-feet. Tor the admission of this evidence the 
 conviction was reversed in the Supreme Court. The court thought that it the 
 object of the testimony was to show that it was the duty of the defendants to 
 build their powder-house in the same way, it was incompetent; " for, to hold 
 that all dealers in gunpowder who have occasion to keep it in quantities are 
 bound to construct their storehouses for that purpose in the same way that is 
 deemed necessary for forts and arsenals would virtually Interdict the traffic in 
 the article by private persons, who could not afford the expense necessary to ■ 
 comply with any such requirement." 
 
 § 174. Frauds. — In transfers of property by husband to wife, or by wife to 
 husband, or where one of them is tacitly permitted to deal with the property of 
 the other, the question as between them, or between either and those claiming 
 as assignees or successors of the other, is one of intent. There, usage as well 
 as their express agreements may determine whether the transaction is a loan or 
 a gift, or only a change of possession under an agency.^ In an action for fraud 
 in the sale of wool, the fraud consisting in the delivery of several ounces of 
 unwashed tags and dirty wool concealed in each fleece, the custom of putting 
 up wool in the section of the country where it is bought is relevant. ' 
 
 Fraud cannot be proved by independent evidence of a custom ; therefore, In 
 Gerhard v. Neese,* where a common carrier brought an action for freight earned 
 in transporting cotton from a point in the State to Brownsville during the civil 
 war, and the defendant, in order to raise a presumption that the plaintiff was 
 engaged in an illegal exportation of the cotton, was allowed by the court to 
 prove a custom, then prevalent, of running cotton from Brownsville across 
 the Rio Grande into Mexico, this was held to be error. 
 
 ' 56 Barb. 72. p. Patton, 75 lU. 446 ; Ashworth v. Outrara, 37 
 
 2 Abb. on Trial Bv. 173; Chambovet p. L. T. (N. s.) 86; Peters o. Fowler, 41 Barb. 
 
 Cagney, 35 N. Y. S. C. (J.&S.)486; Jacobs p. 467; Hart v. Tonng, 1 Lans. 417; Nash «. 
 
 Hessler, 113 Mass. 161; Kleine's Appeal, 39 Mitchell, 8 Abb. N. C. 171; Whedon v. 
 
 Pa. St. 463; Mason i>. Bowles, 117 Mass. 86; Champlin, 59 Barb. 61; Smith v. Kennedy, 
 
 Campbell «. Campbell, 21 Mich. 438; Moyer's 13 Hun, 9; Cuck v. Quackenbush, 13 Hun, 
 
 Appeal, 77 Pa. St. 486; Alston v. Rowles,13 107; Hills v. Hoitt, 18 N. H. 603. And see 
 
 ria. ] 23 ; Huston ». Clark, 50 N. H. 482 ; South - ante, § 165. 
 
 wick V. Southwick, 9 Abb. Pr. (n. s.) 109; 49 s WiUard i>. Merritt, 45 Barb. 296. 
 
 N. Y. 510 ; Hall v. Young, 37 N. H. 134 ; Lyons < 86 Texas, 635. 
 
 V. Green Bay, etc., B. Co., 42 Wis. 618 ; Patten 
 
NEGLIGENCE. 331 
 
 Trespass. 
 
 § 176. Trespass. — What is a reasonable and proper use of a public or private 
 way depends much on public usage. The general use and acquiescence of the 
 public is evidence of the right. The owner of land may make such reasonable 
 use of the way adjoining his land as is usually made by others similarly situated. 
 In a populous town, where land is valuable, it is the custom to erect buildings 
 and fences on the line of the street, and to place doors and gates in them so as, 
 when opened, to swing over the street. In like way, where the owner of a lot 
 in such a situation has occasion to build, and for that purpose to dig cellars, it 
 Is usual to lay his building-materials and earth within the limits of the street. 
 So, again, to improve the way, an adjoining owner, with an honest intent to 
 improve the way and make it more convenient for public use, sometimes spreads 
 earth and gravel on it. A proprietor allows ornamental work on his house to 
 project over the street ; he permits horses and carriages to stand in the street 
 against or near his house. All these acts, it is true, are technically trespasses; 
 but considering the usages and customs of the community, they are not so. 
 They become, by virtue of these, appropriate and proper uses of the highway. 
 Were it not so, as said by Martin, J., in a Massachusetts case,' " very few of 
 us would escape." ^ But where a person had erected a bay window to his 
 house, projecting over the land of an adjoining owner, the court said: "If 
 there be a custom in Boston to erect bay windows, balconies, and other struc- 
 tures over the streets, provided they do not interfere with the rights of the 
 public, by proprietors who own the soil of the street, such a custom has no 
 application to the case. If it be the custom to erect them over the land of 
 other people, such a custom is illegal, and the defendant cannot justify himself 
 in occupying his neighbor's property as a part of his dwelling-house on the 
 ground that such trespasses are customary in Boston." ' And the custom of the 
 inhabitants of a part of a city to allow childi'en to play in the streets does not 
 show that such use of the streets was lawful.* 
 
 But a custom to take anything from another's land could not be supported at 
 common law, the rule being that a profit a prendre could not be claimed in alieno 
 $olo.^ A custom to occupy or take from the land of another is bad.' And, 
 except as seen in the last paragraph, a usage cannot excuse a trespass.' A gen- 
 
 1 O'Linda v. Lothrop, 21 Pick. 292. ledge v. Manning, 1 H. Black. 53; Lloyd v. 
 
 ' Underwood v. Carney, 1 Cush. 285 ; Ger- Jones, 12 Jur. 657 ; 17 L. J. (0. P.) 206 ; 6 0. B. 
 
 ard V. Cook, 2 Bos. & Pul. N. R. 109; Phila- 81; Attorney-General v. Mathias, 27 L. J. 
 
 delphia v. Presbyterian Board, 29 Leg. Int. (CIi.) 761 ; Wilkinson v. Proud, llMee. & W. 
 
 S3; Tiie Commonwealtli v. Blaisdell, 107 33; Horton w. Beckman, 6 Term Eep. 760; 
 
 Mass. 434; Halls. Xottiugham, 24 Week. Grimstead v. Marlowe, 4 Term Bep. 717; 
 
 Rep. 58. Cooper v. Barber, 3 Taun. 99 ; Gateward's 
 
 » Codman ». Evans, 5 Allen, 378. Case, 6 Coke, 60 b ; Canbain v. Fish, 1 Price 
 
 * Schierhold v. Xorth Beach, etc., R. Co., P. C. 148. A custom that all the inhabitants 
 
 40 Cal. 447. And see Evans v. Bldwell, 20 of a. particular town, for the time being, 
 
 Conn. 209. have a right to depasture tlie unenclosed 
 
 ' Bastard ». Smith, 2 Moo. &R. 129; Racer. lands of individual proprietors within the 
 
 Ward, 4 El. & Bl. 702; Constable v. Niohol- town, is void. Smith v. Floyd, 18 Barb. 523. 
 son, 14C. B. tN. 8.) 230; Churton ». Prewen, 'Waters v. Lilley, 4 Pick. 145; 16 Am. 
 
 L. E. 2 Eq. 634; Uanmer v. Chance, 11 Jur. Dec. 333; Cobb v. Davenport, 3 Vroom, 369; 
 
 (N. s.) 397; Shuttleworth v. Le Fleming, 19 Littlefield v. Maxwell, 31 Me. 136; Eenyon e. 
 
 C. B. (N. s.) 687; Dyce v. Hay, 1 Macq. Nichols, 1 R. L 106. 
 
 H. L. Oas. 305; Bland v. Lipscombe, 4 El. & ' Rivers v. Burbank, 13 N'ev.398; Enowles 
 
 Bl. 712 ; 1 Jur. (N.s.) 707; 3 Com. Law Rep. 261; e. Dow, 22 N. H. 387j Perley v. Langley, 7 
 
 Steel V. Houghton, 1 H. Black. 61; Worl- N. H.233; Nudd ». Hobbs, 17 N. H. 626. 
 
332 IN DIFFERENT KELATION8 AND OCCUPATIONS. 
 
 Negliftcnce. 
 
 eral usage of depositing lumber on the bank of a river, witliout more, cannot 
 raise a presumption of a grant.' In an action of trespass for killing a mare 
 with dogs, that it is the custom of the neighborhood to set dogs on horses 
 which broke into fences or enclosures is irreJevant; " but where the plaintiff's 
 colt had been killed by, as was alleged, the negligence of the defendant iii 
 removing trees on his land, it was held that, it being shown to be the custom 
 of the neighborhood to permit horses and cattle to run at large, the defendant 
 could not resist the action on. the ground that the colt was trespassing on his 
 land when it was killed. ' 
 
 In North Carolina it is held that a license to enter upon land and take fish 
 cannot be implied by proving a custom in the country at large for every person 
 to enter upon such lands and take fish. "By the common law," say the court, 
 " an imaginary line is thrown around the land of every one, which may not be 
 entered without subjecting the wrong-doer to an action. No custom or usage 
 can change this law. If the owner of land unreasonably refuses to aUow his 
 neighbors to fish in his mill-pond, or to gather strawberries in his old field, the 
 only correction is to arraign him at the bar of public opinion for the violation of 
 ^e rules of good neighborship." * On the other hand, in a recent Michigan 
 case,* an action of trespass was brought against the defendant for Ashing In the 
 plaintiff's lake. The plaintiff had a verdict, which was reversed on appeal. The 
 court admitted the right of the landholder over the lake in question, but said : 
 " It has always been customary, however, to permit the public to take fish in all 
 the small lakes and ponds of the State, and, in the absence of any notification 
 to the contrary, we think that any one may understand that he is licensed to do 
 go. No snch notification appears in this case, and we therefore hold that the 
 iefendant was not a trespasser in passing upon plaintiff's land with the intent to 
 !|ike fish, having no knowledge that objection existed to his doing so." This 
 quotation includes everything that was said by the court, and the conclusion is 
 therefore unsatisfactory, for wanting any reference to the older cases.^ 
 
 Where there is a general usage in a neighborhood to let cattle run at large 
 upon the highway and unenclosed lands adjoining, one adopting the usage is 
 taken to have thereby licensed the cattle of others to run at large on his lands 
 so situated.' 
 
 § 176. TJso of Watercourses. — As to what is a reasonable use of water in a 
 stream is always a question of fact, and is to be determined by the capacity of 
 the stream, the nature and character of the works sought to be propelled thereby, 
 the machinery used, or the reasonable necessities of the mill-owner in view of 
 all the facts, and finally by the custom of the country .» " Usage Is some proof 
 of what is considered a reasonable and proper use of that which is a common 
 right, because it affords evidence of the tacit consent of all parties interested 
 to the general convenience of such use." ' 
 
 • Bethum v. Turner, 1 Mo. 111. And see * Winder v. Blake, 4 Jones L. 332. 
 
 Heath v. Bicker, 2 Me. 72; A-lame v. Morse, » Marsh v. Olby, 39 Mich. 636. 
 
 61 Me. 497. e And see Lloyd v. Jones, 6 C. B. 81. 
 
 2 Evans v. Hesler, 1 Bibb, 861. 7 Wheeler v. Rowell, 7 N. H. 515. 
 
 » Durham ». Musaelman, 2 Blaokl. 96; 18 > Wood on Nuis., § 416. 
 
 Am. Deo. 138. t Qould o. Boston Duck Co., 13 Gvny, 412; 
 
NEGLIGENCE. '6'6H 
 
 Crimes. 
 
 §177. Offices and Officers. — Usage may prescribe an oflScer's duty,' his 
 powers,* and his compensation.' In regard to the filling of offices, the usage of 
 the government* and the custom of a church society "have in different cases 
 been recognized. So, the long-continued practice of the executive department 
 of the government to sign bills passed by the legislature. In a certain mode. Is 
 noticed by the courts.^ In a Kentucky case, where an acknowledgment was 
 taken by a deputy-clerk who at the time was a minor, the court said: "There 
 is no statute in this State prescribing the qualifications of a deputy-clerk. It has 
 been the immemorial custom of clerks to appoint minor deputies, and, as far as 
 we are advised, the legality of such appointments has never before been called 
 In question, and we must regard such long-continued acquiescence on the part 
 of the legislature, the bench, and the bar as the very highest possible evidence 
 of Its legality." ' The following acts have been supported by the courts on 
 proof of usage, viz.: A sale by the sheriff, by virtue of writs of venditioni 
 exponas, after the return-day;" the approval of an administration bomd;" the 
 receipt by a deputy-sheriff of the amount due on an execution, and its discharge 
 after the return-day; '" the employment by a notary-public of clerks to perform 
 a part of his duties." And In an action by a sheriff on the bond of one of his 
 deputies, the question being whether a certain return was a false one, evidence 
 that it was in accordance with custom was held competent." 
 
 Where a justice of the peace was indicted for malpractice in office, in not 
 returning a warrant and recognizance Issued by him to the Supreme Court, but 
 wilfully and corruptly suppressing It, evidence of a practice of other justices 
 going to excuse the defendant's acts was rejected." 
 
 § 178. Crimes. — In The State v. Mamsay,^* a prosecution against one for dis- 
 turbing worship, In interrupting the services by rising to his feet in the congrega- 
 tion and persisting In speaking, until removed from the church, it was held proper 
 for the State to ask a witness "if it was a custom in this church for an expelled 
 member to get up on the Sabbath day, just before or at the beginning of the 
 regular service, and make known his grievances." Where one is indicted for 
 carrying a weapon concealed on his person, and the issue is whether the weapon 
 (a pistol) was concealed, that It was his custom to carry a pistol about his 
 person openly exposed to view is irrelevant.!^ 
 
 Thurber v. Martin, 2 Gray, 394 ; Snow v. Par- * The State v. Lowell, 16 Ark. 664. 
 
 sons, 28 Vt. 459 ; Dumont v. Kellogg, 29 Mich. ' Miller v. Eshbaoh, 43 Md. 1. 
 
 420; Timm v. Bear, 29 Wis. 254; Thomas v. « Solomon v. Commissioners, 41 Ga. 157. 
 
 Brackney, 17 Barb. 654; Hill v. Ward, 1 111. ' Talbott v. Hooser, 12 Bush, 410. 
 
 285; PoUitt V. Long, 58 Barb. 20; Bassett v. » Blythe v. Kiohards, 10 Serg. & K. 261; 13 
 
 Salisbury Man. Co., 43 N. H. 567; Hays v. Am. Deo 672. 
 
 Waldron, 44 N. H. 584; Norway Plains Co. v. » Mayhew v. Soper, 10 Gill & J. 366. 
 
 Bradley, 52 N. H. 110. •" Wyer v. Andrews, 13 Me. 168. 
 
 1 Fennings v. Lord Grenville, 1 Taun. 241 ; " Monroe v. Woodruff, 17 Md. 169. 
 Woods V. Galbraith, 2 Yeates, 306 ; Eddy v. i« Naylor v. Semmes, 4 Gill & J. 273. 
 Faulkner, 3 Teatos, 680, " Lynes v. The State, 46 Ga. 208. 
 
 2 Taylor ». Sotolingo, 6 La. An. 154. " 78 N. C. 448. 
 
 ' United States v. McDaniel, 7 Pet. 1; '* Washington v. The State, 36 Ga. 242. 
 United States v. Fillebrowu, 7 Pet. 28. And see further, ante, § 30. 
 
CHAPTEE IV. 
 
 ON THEIR ADMISSIBILITY TO EXPLAIN WRITTEN Am> 
 OTHER EXPRESS CONTRACTS. 
 
 Illustrative Cases : — 
 
 24. Smith V. Wilson. — To explain words and phrases therein. 
 
 25. Oooper v. Kane.^lo add terms and incidents thereto. 
 
 26. Hwmfrey v. Dale. — Same principle. 
 
 27. Byerss v. Wheeler. — To interpret wills. 
 
 28. Tilley v. City of Chicago. — Not admissible where no contract 
 
 is shown. 
 
 Notes : § 179. Parol evidence not receivable to vary or contradict a writing. 
 
 180. Admissibility of evidence of usage — Views of Mr. BROWfrx. 
 
 181. Usage may explain technical or unintelligible terms. 
 
 182. Classification of the cases. 
 
 183. tTsage admissible to add unexpressed terms to written contracts. 
 
 184. Incidents annexed to contracts generally. 
 
 185. Incidents added by usage cannot establish a contract. 
 
 186. That parties differed as to the usage does not destroy the con- 
 
 tract. 
 
 187. Usage not admissible to supply disputed terms. 
 
 188. Contracts of sale — Usage as to quality and description of goods. 
 
 189. Same — Usage as to quantity and price. 
 
 190. Same — Other cases. 
 
 191. Principal and agent — Usage and custom. 
 
 192. Other cases — Suretyship — Attorney and client. 
 
 193. Bailment or sale. 
 
 194. When admissible to explain deeds. 
 
 195. Sporting usages. 
 196; Mines and mining. 
 
 197. Contracts for labor and materials. 
 
 198. Master and servant — Contracts of service. 
 
 199. Same — To explain the duties of an employment under a written 
 
 contract. 
 
 200. Usage admissible in explanation of wills. 
 
 201. Evidence of usage to explain words and phrases in policies of 
 
 insurance. 
 (884) 
 
TO EXPLAIN WORDS AND PHRASES. 335 
 
 Illustrative Cases. 
 
 NOTBS: §202. Same — Marine Insurance. 
 
 203. Same — Fire policies. 
 
 204. To explain bills of lading. 
 
 205. To explain charter-parties and other maritime contracts. 
 
 24. TO EXPLAIN WORDS AND PHRASES THEREIN. 
 
 Smith v. Wilson.* 
 In the English Court of King's Bench, Trinity Term, 1832. 
 
 Chakles, Lord Testtkrden, Chief Justice. 
 Sir Joseph Littledale, Kt., 
 
 " James Pakke, Kt., 
 
 " William Ei,ias Taunton, Kt., 
 
 " John Patteson, Kt., 
 
 Judges. 
 
 In a lease of a rabbit-warren, the lessee covenanted that at the expiration of the term he 
 would leave on the warren ten thousand rabbits, the lessor paying for them £60 per 
 thousand. In an action by the lessee against the lessor for refusing to pay for the rabbits 
 left at the end of the term : held, that parol evidence was admissible to show that by the 
 custom of the country where the lease was made, the word " thousand," as applied to 
 rabbits, denoted twelve hundred. 
 
 This was an action for the breach of the following covenant in a. 
 lease, whereby the defendant demised to the plaintiffs, inier cUia, a 
 warren : " That at the expiration of the term, they (the plaintiffs) would 
 leave on, the warren 10,000 rabbits, or conies, the defendant paying £60 
 per thousand for the same, and for any more than that number, at that 
 rate, the number to be estimated by two different persons, one to be 
 chosen by each party." Averment that at the expiration of the term 
 the plaintiffs left more than 10,000 — to wit, 19,200 — rabbits upon the 
 warren, but that the defendant would not pay for the same. Plea: 
 Non est factum. 
 
 At the trial before Gakeow, B., at the Summer Assizes for Suffolk, 
 1831, it appeared that at the expiration of the term the number of rab- 
 bits on the warren was estimated by two different persons chosen by the 
 parties to be 1,600 dozen. It was contended for the defendant that, 
 according to the custom of the country, the 1,600 dozen should be 
 computed at 100 dozen to the thousand, and, therefore, that the defend- 
 ant was liable to pay but for 16,000 rabbits. On the other hand, it was 
 insisted -for the plaintiffs that the words "per thousand" must be 
 
 * Reported 8 Barn. & Adol. 728. 
 
536 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Smith V. Wilson. 
 
 understood in the ordinary sense, and that the defendant ought to pay 
 for 19,200 rabbits, being 1,600 dozen. The defendant paid into court 
 a sufficient sum to pay for 16,000 rabbits. Evidence was offered by the 
 defendant to show that the term "thousand," as applied to rabbits, 
 meant in that part of the country 100 dozen. This evidence was 
 objected to, but received by the learned judge, and he directed the 
 jury to find for the defendant if they thought it was proved that the 
 word " thousand," as applied to rabbits, meant 100 dozen. A verdict 
 having been found for the defendant, a rule nisi was obtained for a new 
 trial, on the ground that the evidence had been improperly received. 
 
 Biggs Andrews now showed cause. — The evidence was admissible. 
 The word " thousand" does not, either in law or practice, denote a pre- 
 cise number of units. A thousand may more generally than otherwise 
 denote ten hundred, of five score to the hundred ; but there are many 
 instances where, as applied to a particular article, it denotes six score 
 to the hundred — as, nails, herrings, ' deal boards. As, therefore, the 
 word ha? more than one meaning, its import in any particular instru- 
 ment depends on the subject-matter to which it is applied. But, even 
 if in its ordinary and popular sense it means ten hundred, yet if it has 
 acquired (in respect to the subject-matter to which it is applied) a 
 peculiar sense distinct from the popular one, then in all contracts 
 relating to that particular subject-matter the acquired meaning must be 
 put upon it.® The object of the evidence is not to add to, vary, or 
 contradict the deed, but to explain the meaning which a party to a con- 
 tract must have put upon a particular word used in it, and that must be 
 ascertained by evidence dehors the deed. Wherever parol evidence has 
 been rejected in cases of this kind, it was because the effect of it was 
 to show that the parties meant something different from what they have 
 said; but here that was not the effect of the evidence, and it was 
 admissible according to the rule laid down in StarJcie on Evidence.^ In 
 Uhde V. Walters,* where an insurance was to any port in the Baltic, evi- 
 dence was admitted to show that the Gulf of Finland was considered, in 
 mercantile contracts, within the Baltic, although the two seas are treated 
 as distinct by geographers. So, in Baker v. Pa;/ne,^ where the captain 
 of an India ship sold all his china-ware and merchandise which he 
 brought home in his last voyage, and covenanted to deduct all due 
 allowances, etc. , he was permitted to adduce proof of a custom to show 
 that such allowances were to be limited by the price which he was to 
 
 1 By the statute 31 Edw. III., st. 2, o. 2. a Page 1033. 
 
 2 KoberUon v. French, 4 Eaet, 138, per * 3 Camp. 18. 
 Lord Ellenborough. > 1 Ves. 459. 
 
TO EXPLiaN WORDS AND PHRASES. 337 
 
 Illustrative Cases. 
 
 receive. In WiggleswoHh v. Dallison,^ it was held that parol evidence 
 was admissible to show that, according to the custom of the country, 
 where a lease for a term of years expired on the 1st of May, the tenant 
 was entitled to take the waygoing crop after the expiration of the term, 
 though this was not mentioned in the deed executed between the par- 
 ties.® Doe dem. Spicer v. Lea ^ may be relied upon on the other side. 
 There a lease was made after the alteration of the style by act of Par- 
 Uament, and extrinsic evidence to show that the parties meant Michael- 
 mas according to the old style was held to' be inadmissible ; but that 
 proceeded on the ground that the parties must be taken to have used 
 the term in conformity with the statute, which expressly regulated the 
 reckoning of time. 
 
 KeUy and Austin, contra. — The general rule is that parol evidence 
 is not admissible to explain a written instrimient ; and in Anderson v. 
 Pitcher,* Lord Eudon regretted that the practice had obtained of receiv- 
 ing such evidence even as to policies of insurance. In the herring 
 trade a precise meaning is given to the word " thousand," as applied to 
 that particular subject-matter, by act of Parliament. Here the words 
 of the covenant must be construed in their ordinary sense. The ambi- 
 guity, if any, is at all events latent. It is produced by something 
 extrinsic or collateral to the instrument. The covenant, however, wUl 
 have an operation if the parol evidence is not received, and then, 
 according to Doe dem. Chichester v. Oxenden,^ such evidence is not 
 admissible. To say in the present case that a thousand means twelve 
 hundred is not to explain, but to contradict the deed. In Hockin v. 
 Gooke,^ proof that the defendant agreed to sell so many bushels of 
 com according to a particular measure was held not to support an 
 allegation in a declaration that he undertook to sell so many bushels, 
 because "bushels," without any other explanation, meant a bushel by 
 statute measure. So, a reddendum, in an old renewed lease, of so many 
 quarters of corn was held to mean Winchester, and not the customary 
 bushel.^ And in Wing v. Erle,^ Gaudy, J. , said that " if one sells land, 
 and is obliged that it contains twenty acres, this shall be according to- - 
 the law, and not according to the custom of the country." 
 
 Lord Tenterden, C. J. — I am of opinion that the evidence was prop- 
 erly received. Where there is used in any written instrument a word 
 denoting quantity, to which an act of Parliament has given a definite 
 
 1 1 Doug. Ml, ante, p. 169. ' 3 Taun. U7. 
 
 » See other instances cited In Cross i>. '4 Term Eep. 314. 
 
 Eglin, 2 Barn. & Adol. 106. ' The Master, etc., of St. Cross r. Lord 
 
 » 11 East, 812. Howard de Walden, 6 Term Rep. 838. 
 
 * 2 Bos. & Pol. 188. ' Cro. Bliz. 267. . 
 
338 THEIU ADMISSIBILITir TO EXPLAIN CONTKACTS. 
 
 Smith V. Wilson. 
 
 meaning, I agi'ee it must be considered to have been used in that sense. 
 But there is no act of Parliament which says one thousand rabbits shall 
 denote ten hundred, each hundred consisting of five score; and that 
 being so, we must suppose the term " thousand " to have been used by 
 the parties in the sense in which it is usually understood in the place 
 where the contract was made, when applied to the subject of rabbits, and 
 parol evidence was admissible to show what that sense was. 
 
 LiTTLEDALB, J. — I am of the same opinion. Words denoting quan- 
 tity are undoubtedly to be understood in their ordinary sense, where no 
 specific meaning is given to them b^ s itute or custom. But here the 
 ordinary meaning of the word "thousand," as applied to rabbits in the 
 place where the contract was made, was one hundred dozen. The word 
 "hundred" does not necessarily denote that number of units, for one 
 hundred and twelve pounds is called a "hundred-weight;" so, where 
 that term is used with reference to ling or cod, it denotes six score ; and 
 there being, therefore, no precise meaning affixed by the legislature to 
 the word "thousand," as applied to rabbits, I think that parol evidence 
 was admissible to show that in the country where the contract was made 
 the word " thousand " meant one hundred dozen. 
 
 Parke, J. — The only question is whether the evidence has been 
 properly received. Assuming that it has, the jury have found that, 
 according to the custom of the country, there was an understanding 
 between the parties to this contract that the defendant should pay for 
 the rabbits, computing them at the rate of one hundred dozen to the 
 thousand. The rule dedueible from the authorities on this subject is 
 correctly laid down in 3 Starkie on Evidence:^ "Where terms are 
 used which are known and understood by a particular class of per- 
 sons in a certain special and peculiar sense, evidence to that effect is 
 admissible for the purpose of applying the instrument to its proper sub- 
 ject-matter ; and the case seems to fall within the same consideration as 
 if the parties, in framing their contract, had made use of a foreign lan- 
 guage, which the courts are not bound to understand. Such an instru- 
 ment is not on that account void ; it is certain and definite for all legal 
 purposes, because it can be made so in evidence through the medium of 
 an interpreter. Conformably with these principles, the courts have long 
 allowed mercantile instruments to be expounded according to the cus- 
 tom of merchants, who have a style and language peculiar to themselves, 
 of which usage and custom are the legitimate interpreters." Although 
 that principle has been more frequently applied to mercantile instru- 
 ments than to others, it is not confined to them ; and if the word " thou- 
 
 ' Page 1033. 
 
ADDING TERMS AND INCIDENTS. 339 
 
 Illustrative Cases. 
 
 sand," as applied to the particular subject-matter of rabbits, had, in the 
 place where this contract was made, a peculiar sense, I think that parol 
 evidence was admissible to show it. In an action upon a contract for 
 the sale of one thousand deals, it would, I think, be competent to show 
 that the word "thousand" meant more than it would in its ordinary 
 sense. I agree that where a word is defined by act of Parliament to 
 mean a precise quantity, the parties using that word in a contract must 
 be presumed to use it in the sense given to it by the legislature, unless 
 it appear from other parts of the contract that they used it differently. 
 But that is not the present case. No specific meaning has been given 
 by the legislature to the word "thousand" as applied to rabbits, and 
 therefore it must be understood according to the custom of the country, 
 and evidence was admissible to show what that was. 
 
 Tatjnton, J. — Words denoting weight, or measure, or number, must 
 undoubtedly be understood in their ordinary sense, unless some specific 
 meaning be prescribed to them by statute or given by custom. Mercan- 
 tile instruments have long been expounded according to tte usage and 
 custom of merchants, ascertained by parol evidence, and I think, on the 
 same principle, the term "thousand," which in this lease is applied to 
 the subject of rabbits, may be explained by the custom of the country 
 to mean twelve hundred, and that parol evidence was admissible for this 
 
 purpose. 
 
 Eule discharged. 
 
 25. to add terms and incidents thereto. 
 
 Cooper v. Kane.* 
 In the Supreme Oourt of New TorTc, May, 1838. 
 
 Hon. Samuel Nelson, Chief Justice. 
 
 " Greene C. Bronson, > , , 
 „ -r^ r. 'i Judges. 
 
 " ESBK COWEN, ) 
 
 A contract for the excavation ol lot8 in a city, so as to make them conform to a certain plan, 
 was silent as to whom should belong the sand or other material taken thereJrom. A 
 custom existed, long established and notorious, that it went to the excavator, and not 
 to the owner of the lots. Held, that evidence of the custom was admissible to explain 
 the contract of the parties. 
 
 This was an action of replevin, tried at the Albany Circuit, in Octo- 
 ber, 1835, before the Hon. Hikam Denio, then one of the circuit 
 judges. 
 
 * Reported ;19 Wend. 380. 
 
340 THEIK ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Cooper V. Kane. 
 
 The action was in detinet, for detaining a quantity of sand taken 
 from a lot in the city of Albany, belonging to the plaintiff, which the 
 defendant had excavated under a contract with the plaintiff, so as to 
 make the lot conform to a profile or plan of the streets established by 
 the corporation. The contract was in writing. The defendant was to 
 excavate the lot and make the necessary embankments within a limited 
 time, for which he was to be paid by the plaintiff $180 when the work 
 was done. The defendant completed the job, and was paid the stipu- 
 lated price. Whilst engaged in the work, the defendant placed a large 
 quantity of sand, which was taken off of the lot in order to make it 
 conform to the required plan, on an adjoining lot, not belonging to the 
 plaintiff, and when requested by the plaintiff to permit her to take it 
 away, he refused such permission. For this detention the action was 
 brought. There was no stipulation in the contract as to whom the sand 
 taken from the lot in making the excavation should belong after it was 
 taken off the lot. The defendant then offered to prove a custom of 
 the city of Albany, which had existed for a great number of years, and 
 was well known and understood, that in the excavation of lots the 
 material excavated belonged to the excavator, and not to the owner of 
 the lot, unless there was an express reservation in the contract to the 
 contrary. The judge rejected the testimony, and instructed the jury that 
 on the evidence adduced the plaintiff was entitled to their verdict, who 
 accordingly found a verdict for the plaintiff, with six cents damages 
 and six cents costs, and assessed the value of the property at $157. 
 The defendant moves for a new trial. The cause was submitted on 
 written arguments. 
 
 C. M. Jenkins, for the defendant ; J. Holmes, for the plaintiff. 
 
 Nelson, C. J. — I am inclined to the opinion that the evidence of the 
 custom in respect to contracts like the one out of which this action has 
 arisen, by way of explaining it, and which was offered by the defend- 
 ant for that purpose, was admissible. It did not go to vary any express 
 or necessarily implied stipulations between the parties therein contained, 
 but rather to establish what amounted to a complete performance agree- 
 ably to the presumed understanding of the parties. 
 
 Mr. Starkie saysi^ "Where parties have not entered into any 
 express and specific contract, a presumption nevertheless arises that 
 they meant to contract and to deal according to the general usage, 
 practice, and understanding, if any sucjh exist, in relation to the subject- 
 matter." The same rub of evidence is als<^ recognized by Phillips;* 
 and Lord Kenyon remaiked, in Wliitnell v. Oartham,^ that evidence of 
 
 > 2 stark, on Ev., §§ 268, 259. > 1 Ph. on Kv. 420, 481. s 6 Term Hep. 898. 
 
^ADDING TEKMS AND INCIDENTS. 341 
 
 Illustrative Cases. 
 
 usage was admissible to expound a private deed as well as the king's 
 charter. The right of carriers, dyers, wharfingers, etc., to a lien on 
 the goods intrusted to them, for their compensation, is frequently estab- 
 Ushed by usage, independently of the contract. In Rushfprth v. Had- 
 field,^ Lord Ellenborough permitted the defendants (common carriers) 
 to go into proof of common usage to detain the goods for a general 
 balance, on the ground of an implied agreement arising out of it 
 between the parties. He observed that if there be a general usage of 
 trade to deal with common carriers in this way, all persons dealing in the 
 trade are supposed to contract with them upon the footing of the general 
 practice, adopting the general lien into their contract. Lawrence, J. , 
 admitted that the lien must be by contract between the parties, but 
 observed that usage of trade was evidence of the contract, and if so 
 long established as to afford a presumption that it was commonly known, 
 it was fair to conclude the particular parties contracted with reference to 
 it. In Kirkman v. Shawcross,^ the dyers, dressers, whisters, printers, 
 etc., of a neighborhood held a public meeting, and entered into an 
 agreement that they would receive no more goods in the way of their 
 trade except on the condition that they should have a lien on them for 
 a general balance, which was extensively published. The court held 
 that any person who delivered goods to them after notice must be 
 deemed to have assented to the terms prescribed ; and, as we have seen, 
 notice might be inferred from the general notoriety of the terms thus 
 published. 
 
 Now, in this case, there is simply an agreement to excavate the earth 
 in a certain street and to make the necessary embankment according 
 to a map of the corporation, for a given compensation. Nothing is 
 said about the surplus earth : where it is to be laid, or what is to be done 
 with it. Would it be a workman-Uke execution of the contract to pile it 
 upon the adjacent bank? Or may the contractor dispose of it as he 
 sees fit, and as most convenient and profitable to himself? It appears 
 to me the solution of these questions may very well be referred to com- 
 mon usage in such cases, if any exist ; and that if it should be proved, 
 as said by Lawrence, J., "it is fair to conclude the pariiicular parties 
 contracted with reference to it." This usage may often have a very 
 important influence upon the minds of the parties, as exemplified in 
 this case, for the value of the materials which the plaintiff has recov- 
 ered nearly equals the price of the job. If in fact the usage exists, 
 and the contract was made in reference to it, serious injustice must be 
 
 the result of upholding the verdict. 
 
 New trial granted. 
 
 • 6 East, 619. ' ' 6 Term Rep. 14. 
 
342 THEIB ADMISSIBILITY TO EXPLAIN CONTKACTS. 
 
 Humfrey v. Dale. 
 
 26. same principle. 
 
 Humfrey v. Dale.* 
 
 In the Court of Queen's Bench, Hilary Term, 1857. 
 
 Et. Hon. John, Lord Campbell, Chie/ Justice. 
 JSir John Tatlob Colbkidge, Et., 
 
 " William Wightman, Kt., 
 
 " William Eble, Kt., 
 
 " Chablbs Crompton, Kt., 
 
 Judges. 
 
 Pflfendants, brokers, being employed by S. to purchase oil, signed a, note as follows: "Sold 
 tbis day lor Messrs. T.," plaintiff 's brokers, " to onr principals, ten tons ol Unseed oil," 
 etc., " quarter per cent brokerage to " defendants. This note defendants delivered to 
 Messrs. T. Defendants did not disclose the name of their principal, S., who became 
 insolvent and did not accept the oil. Plaintiff then sued defendants for not accepting 
 the oil, laying the sale as by himself to defendants. Defendants denied the contract. On 
 the trial, plaintiff proved a custom in the trade that when a broker purchased without 
 disclosing the name of his principal, he was liable to be looked to as purchaser. Held, 
 that evidence of the custom was admissible, as not contradicting the written instru- 
 ment, but explaining its terms or adding a tacitly Implied incident, and that the action 
 lay. 
 
 The declaration alleged that defendants bargained for and bought of 
 the plaintiff, who, at the request of the defendants, sold to them a large 
 quantity, to wit, ten tons, of linseed oil, at and for a certain price, to 
 wit, £44 per ton, real tare and usual draft, to be free delivered during 
 the last fourteen days of February, a. d. 1856, and to be paid for in 
 ready money, allowing two and one-half per cent discount. And 
 although the time for the delivery and acceptance of the said goods, 
 pursuant to the said contract, had elapsed before the commencement of 
 this suit, and the plaintiff was ready and willing, and offered to deliver 
 the said goods to the defendants, pursuant to the said contract, and 
 duly performed all conditions, etc., yet defendants did not, nor would 
 accept or pay for the said goods, or any part thereof, pursuant to the 
 said contract, but wholly neglected, etc. 
 
 Plea : That defendants did not bargain for and buy of plaintiff the 
 said linseed oil, or make the said contract as alleged. Issue thereon. 
 
 On the trial before Coleridge, J., at the London Sittings in Easter 
 Term, 1857, the following facts appeared, as stated in the judgment 
 afterwards delivered : — 
 
 " The action was for the price of linseed oil alleged to be bargained 
 and sold by the plaintiff to the defendants, and not accepted by them. 
 The plea denied the bargain and sale. 
 
 • Reported 7 El. & Bl. 288. 
 
ADDING TEEMS AND INCIDENTS. 343 
 
 Illustrative Cases. 
 
 " The plaintiff had employed Thomas & Moore, brokers, to seU the 
 oil for him. One Shenk was a buyer of oils, and had employed the 
 defendants, who were brokers, to buy for him. The dealing in question 
 was between the brokers ; and after proof of the facts now stated, in 
 order to prove the specific contract, the plaintiff put in the two following 
 notes. 
 
 First: — 
 
 '"75 Old Beoab St., LoNDOif, 14th August, 1855. 
 
 " ' Sold this day, for Messrs. Thdmas & Moore, to our principals, 10 
 
 tons of Unseed oil, of merchantable quality, at £44 per ton, real tare 
 
 and usual draft, to be free delivered during the last 14 days February 
 
 next, and paid for in ready money, allowing 2 1 per cent discount. . 
 
 . " ' Dale, Morgan & Co., Brokers. 
 
 " ' Quarter per cent brokerage to D., M. & Co.' 
 
 "This note was signed as above, and sent by the defendants to 
 Thomas & Moore. 
 
 Second: — 
 
 "'LoKDON, 14th August, 1855. 
 
 " ' Sold to Dale, Morgan & Co. , for account of Mr. Charles Humfrey, 
 10 tons of linseed oU, of merchantable quality, at £44 per ton, real tare 
 and usual draft, to be free delivered during the last 14 days February 
 next, and paid for in ready money, allowing 2^ per cent discount. 
 
 '"Thomas & Moore, Brokers. 
 
 " ' Quarter per cent brokerage to D., M. & Co., a half to us.' 
 
 "And the plaintiff further gave in evidence, without objection, that, 
 according to the usage of the trade, whenever a broker purchased with- 
 out disclosing the name of his principal, he was hable to be looked to as 
 the purchaser. In this case, the defendants had not disclosed their 
 principal's name tiU an unreasonable time after the contract made, and 
 when he had become insolvent." 
 
 Oh this evidence, the counsel for the defendants contended that the 
 contract between the parties as laid in the declaration was not proved. 
 A verdict was taken for the plaintiff, leave being reserved to move for a 
 nonsuit. 
 
 In the same term, Manisty obtained a rule nisi for a nonsuit, on the 
 following grounds: " First, that there was no evidence of the alleged 
 contract of sale and purchase ; second, that evidence of the alleged cus- 
 tom is not admissible ; " or for a new trial on the ground of surprise, 
 which was not insisted upon in argument. 
 
 In last term, Pigott,^ Serjt., and Kemplay, showed cause. — There 
 
 ' Hovemberl, 1857, before lord Campbell, C. J.; Coleriage, Wightman, and Erie, JJ. 
 
344 THEIR ADMISSIBILIir TO EXPLAIN CONTKACTS. 
 
 Humfrey ■». Dale. 
 
 was evidence making the defendants liable as purchasers. The note 
 signed by them indeed describes them as selling for Thomas & Moore, 
 but it goes on to state the sale to be made " to our principals ; " they 
 are, therefore, on the face of the note, agents for undisclosed principals, 
 •who are the purchasers ; and this renders them personally liable, though 
 the principals might also be sued.' And that this is consistent with the 
 form of the document appears from Pennell v. Alexander.^ If this be 
 not enough, on general principles, to fix the liability on the defendants, at 
 any rate the usage does so. An objection is now made to the admis- 
 sibility of the evidence of the usage. But it was given not to contra- 
 dict the terms of the contract, but to interpret its meaning as between 
 the parties. Mr. Smith, in his note on Thomson v. Davenport,^ says: 
 ' ' Some difficulty has been thought to surround the subiect-matter of 
 this note (namely, the creditor's right of election), arising out of that 
 inflexible rule of the law of evidence commented on in Wigglesworth Y. 
 DalHson,* viz. : that the terms of a written contract cannot be qualifled 
 or contradicted by parol testimony. It has been said, if A. contract in 
 writing without naming his principal, so that he appears upon the 
 writing to be himself the principal, does not a creditor who seeks to 
 show that while thus professedly contracting for himself he reaUy con- 
 tracted for a principal, endeavor to infringe this rule of evidence by 
 adding to the written contract a new term at variance with the written 
 terms? This question, it is, however, apprehended, must receive differ- 
 ent answers upon different occasions — answers varying according to the 
 object with which it is sought to introduce the parol testimony, which 
 it is submitted never can be heard for the purpose of charging the 
 agent, but may always be so for that of charging the principal." That 
 view is fully confirmed by the judgment in Higgins v. Senior,^ where 
 Smth's note is referred to. Trueman v. Loder^ may be cited as 
 opposed to this. The marginal note there states that " evidence was 
 offered by defendant of a custom in the tallow trade that on such eon- 
 tracts as the above, ' a party might reject the undisclosed principal, and 
 look to the broker for the completion of the contract.' Held, inadmis- ' 
 sible, as varying a written contract." There the broker, acting for both 
 parties, signed a bought-note beginning, "Bought for T.," the plaintiff , 
 and a sold- note beginning, ' ' Sold for H. , " who represented the defendant, 
 "to my principals," not named; and the attempt was to get rid of the 
 
 1 Thomson v. Davenport, 9 Barn. & Crosa. » 1 El. & Bl. 50 ; 1 Smith's Ld. Oas. (4th ed.) 
 78; 2 Smith's Ld. Oas. (4th ed.) 297, note; 460; 1 Doug. 201. 
 
 Story on Ag. , § 2«7. 6 8 Mee. & ■yy. 834. 
 
 2 3 El. & Bl. 383. « 11 Ad. & E. 589. 
 
 3 3 Smith's Ld. Oas. (4th ed.) 303. 
 
ADDING TERMS AND INCIDENTS. 345 
 
 Illustrative Cases. 
 
 liability of the defendant as principal vendor. It was held that this 
 could not be done ; but it is here contended only that the evidence may 
 be given to fix the principal, which accords with Mr. Smith's rule, and 
 does not contradict Trueman v. Loder. So, in Magee v. Atkinson,^ 
 where the broker was held liable, the evidence rejected was not of a 
 custom charging the agent. In Carr v. Jackson,^ it was held that evi- 
 dence might be given to show that a party describing himself in a 
 written contract as agent was in fact a principal. So, conversely, in 
 Schmaltz v. Avery, ^ it was held that a party who had signed a written 
 contract expressing that he acted for another, might still prove himself 
 to be principal. The defendants, therefore, are here liable ; and they 
 are Uable to the plaintiff, who has a right to sue on the contract made by 
 his brokers, if the state of accounts between the other parties be not 
 disturbed thereby. 
 
 Manisty, contra. — The note signed by the defendants is, at any rate, 
 not in the ordinary form of a contract between themselves and the plain- 
 tiff ; and it has been found necessary in the argument on the other side 
 to treat it as a contract, not for sale for Thomas & Moore, but for pur- 
 chasing on behalf of the unnamed principals. But, so understood, it is 
 not a contract of purchase by, or sale to, the defendants. If the state- 
 ment of the sale to the principals be untrue, the defendants are liable to 
 anaction. [Coleridge, J. — By "principals," must we not understand 
 the principals in this particular contract?] If evidence may be given, 
 as no doubt it may, as to who the principals are, that shows with whom 
 the contract was made; if it could not, no contract at aU would be 
 proved. It is true that a party who takes the broker as the contractor, 
 intending so to do, cannot afterwards look to the principal ; but here 
 the intention appears to have been to treat the contract as made, not 
 between the plaintiff and the defendants, but as between Thomas & 
 Moore and the principals of the defendants. In Thomson v. Davenport,'^ 
 and other cases of that class, the question was as to resorting to the 
 principal, which, it was held, the other party to the contract was entitled 
 to do. Here the principals are the parties expressly made liable. The 
 evidence of the custom, if admissible, would show a different contract, 
 and would contradict the language of the written instrument. If the 
 contract was with the defendants as purchasers, it was a contract not 
 shown by any memorandum in writing ; and, therefore, by the Statute 
 of Frauds, it cannot be enforced. 
 
 Cur. adv. vult. 
 
 1 2 Mee. & W. 440. S16Q.B. 655. 
 
 « 7 Exoh. SS2. » 9 Barn. & Cress. 78. 
 
346 THEIE ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Humfrey v. Dale. 
 
 Lord ,Campbell, C. J., now delivered the judgment of the court. 
 
 This was a rule to enter a nonsuit, and the facts upon which the ques- 
 tion to be decided arises, appear to be the following. [His lordship 
 then stated the facts as ante.'] 
 
 It was then objected that upon this state of facts there was no evi'^ 
 dence of any contract ; but if of any, that it was of a contract between 
 Thomas & Moore and the defendants, not of a contract between the 
 plaintiff and them. And upon the argument the admissibility of the 
 evidence of usage was debated ; upon which, therefore, it will be neces- 
 sary for us to express our opinion. 
 
 Upon consideration, we think that there is no foundation for either 
 objection. Parol evidence was clearly admissible to show the circum- 
 stances under which the contract was made, and the relation of the 
 plaintiff and defendants to it and to each other in respect of it. It was 
 shown then, without the help of usage, that the plaintiff was the owner 
 of the oil, and that Thomas & Moore were employed by him to sell it. 
 By the note first stated, the defendants, signing as brokers, say that 
 they have sold for Thomas & Moore to their own principals, whom 
 they do not name, but for whom they, by necessary implication, 
 say that they have bought. It cannot be doubted that although 
 they say in the note they have sold for Thomas & Moore, the plaintiff 
 might show that Thomas & Moore were only his agents, and that he was 
 in fact the principal for whom the defendants sold, and with whom, if 
 with any one, as the seller, the contract was made. But the defendants 
 also state that they have bought ; for they say they have sold to a person 
 who is their principal, which must mean their principal as buyer in that 
 transaction. Whether they had authority from him so as to bind him 
 by their signature is not now the question as against him, but as against 
 themselves ; and they cannot deny that they have made such purchase as 
 they themselves state. We have, then, as the case now stands, clear 
 evidence of a contract of bargain and sale between the plaintiff as the 
 seller and the undisclosed principal of the defendants. 
 
 The only remaining question is, having stated a purchase for a third 
 person as principal, is there evidence on which they themselves can be 
 made liable? Now, neither collateral evidence nor the evidence of a 
 usage of trade is receivable to prove anything which contradicts the 
 tenor of a written contract ; but, subject to this condition, both may be 
 received for certain purposes. To use the language of Mr. Phillips, ^ 
 " Evidence of usage has been admitted in the foregoing instance of con- 
 tracts -relating to transactions of commerce, trade, farming, or other 
 
 ' 2 Ph. & Am. on Ev. (10th ed.) 415. 
 
ADDING TERMS AND INCIDENTS. 347 
 
 Illustrative Cases. 
 
 business, for the purpose of defining what would otherwise be indefinite, 
 or to interpret a peculiar term, or to explain what was obscure, or to 
 ascertain what was equivocal, or to annex particulars and incidents 
 which, although not naentioned in the contracts, were connected with 
 them, or with the relations growing out of them, and the evidence in 
 such eases is admitted with the view of giving effect, as far as can be 
 done, to the presumed intention of the parties." Now, here the plaintiff 
 did not seek by the evidence of usage to contradict what the tenor of 
 the note primarily imports, namely : that this was a contract which the 
 defendants made as brokers. The evidence, indeed, is based on this ; 
 the usage can have no operation except on the assumption of their 
 having so acted, and of there having been a contract made with their 
 principal. But the plaintiff, by the evidence, seeks to show that accord- 
 ing to the usage of the trade, and as those concerned in the trade under- 
 stand the words used, they imported something more, namely : that if 
 the buying broker did not disclose the name of his principal, it might 
 become a contract with him if the seller pleased. Supposing this inci- 
 dent had been expressed on the face of the note, there would have been 
 no objection to it as affecting the validity of the contract, for the effect 
 of it would only have been that the sale might be treated by the vendor 
 as a sale to the broker unless he disclosed the name of his principal ; if 
 he did that, it remained a sale to the principal — assuming, of course, the 
 broker's authority to bind him. The case would then be analogous to 
 that of the delivery of goods on a contract of " sale or return," where 
 the goods pass only conditionally — that is, unless the buyer, within the 
 limited or a reasonable time, if none be limited, exercises the option of 
 returning them; if he does, the contract falls to the ground and is 
 defeated, as if it had never been ; if he does not, it takes effect from the 
 time when it was made. 
 
 Whether this evidence be treated as explaining the language used, or 
 adding a tacitly implied incident to the contract beyond those which are 
 expressed, is not material. In either point of view it will be admissible, 
 unless it labors under the objection of introducing something repugnant 
 to or inconsistent with the tenor of the written instrument. And upon 
 consideration of the sense in which that objection must be understood 
 with reference to this question, we think it does not. 
 
 In a certain sense, every material incident which is added to a written 
 contract varies it, makes it different from what it appeared to be, and 
 so far is inconsistent with it. If by the side of the written contract 
 without, you write the same contract with the added incident, the two 
 would seem to import different obligations and be different contracts. 
 
348 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Humfrey v. Dale. 
 
 To take a familiar instance by way of illustration : On the face of a biU 
 of exchange at three months after date, the acceptor would be taken to 
 bind himself to the payment precisely at the end of the three months ; 
 but by the custom he is only bound to do so at the end of the days of 
 grace, which vary, according to the country in which the bill is made 
 payable, from three up to fifteen. The truth is, that the principle on 
 which the evidence is admissible is that the parties have not set down 
 on paper the whole of their contract in all its terms, but those only 
 which were necessary to be determined in the particular case by specific 
 agreement, and which, of course, might vary infinitely, leaving to impli- 
 cation and tacit understanding all those general and unvarying incidents 
 which a uniform usage would annex, and according to which they must 
 in reason be understood to contract unless they expressly exclude them. 
 To fall within the exception, therefore, of repugnancy, the incident 
 must be such as, if expressed in the written contract, would make it 
 insensible or inconsistent. Tims, to warrant bacon to be " prime 
 singed," adding, " that is to say, slightly tainted," ' or to insure all the 
 boats of a ship, and add, " that is to say, all not slung in the quarter," * 
 and other cases of the same sort scattered through the books, would be 
 instances of contracts in which both the two parts could not have full 
 effect given to them if written down; and, therefore, when one part 
 only is expressed, it would be unreasonable to suppose that the parties 
 intended to include the other also. Without repeating ourselves, it 
 will be found that the same reasoning applies where the evidence is used 
 to explain a latent ambiguity of language. 
 
 But here, if all that the plaintiff contends for had been expressed, 
 the defendants would have contracted thus : " We buy for our princi- 
 pal ; but if we do not disclose his name within a reasonable time, we 
 , agree that you may treat us as the purchasers." And it cannot be said 
 that the latter branch is inconsistent with the former, any more than the 
 power to return, subject to which the goods pass, is inconsistent with 
 their passing. There is a case of Bywater v. Richardson,^ which illus- 
 trates this. It was an action of deceit, for the breach of a warranty of 
 soundness in the sale of a horse. The warranty was in writing, abso- 
 lute and unconditional in its form, and the horse was unsound. Yet it 
 was held an available defence to show that by a rule of the repository 
 at which the horse was sold, known to the plaintiff, all wai-ranties there 
 given were to be in force only until twelve at noon on the day following 
 
 1 Tates V. Pym, 6 Taun. 446. a \ Ad. & E. 503. 
 
 ^ Blaokett v. Royal Exchange Aasur. Co., 2 
 Oromp. & J. 244; post. Chap. V. 
 
ADDING TEBMS AND INCIDENTS. 349 
 
 Illustrative Cases. 
 
 the sale, unless meantime a notice of the unsoundness, with a certificate 
 from a surgeon, was delivered at the office. Here the rule, known to 
 the parties, is exactly analogous to the usage of trade. The warranty 
 did not in its terms import that it was binding for all time, exclusively 
 of the rule. It was not, therefore, inconsistent with those terms to 
 import a limitation of time ; and, by virtue of the rule, it was held that 
 the parties had implicitly imported it. Browne v. Byrne ^laas been so 
 lately decided by us, and we there expressed ourselves so Jully on this 
 point, that we need do no more than refer to it. But our brother 
 Pigoit, in showing cause against the rule, cited, for the purpose of dis- 
 tinguishing it, the case of Truemom v. Loder; ^ and it is certainly a 
 difficulty in his way, not as to the decision itself, which is quite con- 
 sistent with our present observations, but in respect of a collateral 
 matter there said to have been determined. That was an action for 
 non-delivery of tallow. The sale was effected by a broker, one Wool- 
 ner, acting for both parties, and signing both the bought and sold notes. 
 In the former the purchase was described to be for Trueman & Cooke, 
 the plaintiffs; in the latter the sale was expressed to be "for Mr. 
 Edward Higginbotham, to my principals ; " and the main struggle in 
 the case was to make the defendant liable as trading under the name 
 and throMgh the instrumentality of Higginbotham ; and there could be 
 no doubt of the soundness of the principle on which that might be done, 
 if the facts bore it out. But in the judgment it is stated that the 
 defendant, on the trial, sought to put this question: "whether it was 
 not a custom in the tallow trade that under such contracts a party may 
 reject the undisclosed principal, and look to the broker for the com- 
 pletion of the contract," and that this question was not allowed to be 
 put, which ruling the court confirms. How this question could have 
 any bearing on the matter in issue, where the contract apparently dis- 
 closed both principals, and where the plaintiff was seeking to enforce it 
 against a disclosed principal, — for such, as to the present point, Loder 
 must be taken to have been, under another name, — it is certainly diffi- 
 cult to see ; and this difficulty is pointed out in the judgment. In it 
 the same principle was admitted on which the plaintiff here relies, but 
 it was thought in the application of that principle that the term in 
 question sought to be annexed to the contract would be inconsistent 
 with its tenor. We do not cite Hodgson v. Davies,^ &a a legal decision, 
 to be opposed to this. Lord Dbnman dealt with it in the judgment in 
 question, and showed how little it can be supposed to carry with it of 
 
 » 8 El. & Bl. 703. ' 2 Camp. 630i , 
 
 <llAd. &E.589. 
 
350 THEIR ADMISSIBlLITr TO EXPLAIN CONTKAOTS. 
 
 Humfrey v. Dale. 
 
 the weight of Lord Ellenbokough's opinion. But we refer to it in con- 
 nection with Trueman v. Loder, because both cases, we think, disclose 
 how entirely the minds of lawyers are under a different influence from 
 that which, in spite of them, will always influence the practice of traders, 
 which practice creates the usages of trade. The former desire cer- 
 tainty, and would have a written contract express all its terms, and 
 desire that no parol evidence beyond it should be receivable ; but mer- 
 chants andjtraders, with a multiplicity of transactions pressing on 
 them, and moving in a narrow circle, and meeting each other daily, 
 desire to write little, and leave unwritten what they take for granted in 
 every contract. In spite of the lamentations of judges, they will con- 
 tinue to do so ; and in a vast majority of cases, of which courts of law 
 hear nothing, they do so without loss or inconvenience, and upon the 
 whole they find this mode of dealing advantageous, even at the risk of 
 occasional litigation. It is the business of courts reasonably so to 
 shape their rules of evidence as to make them suitable to the habits of 
 mankind, and such as are not likely to exclude the actual facts of the 
 dealings between parties when they are to determine on the contro- 
 versies which grow out of them. It cannot be doubted in the present 
 case that in fact this contract was made with the usage understood to 
 be a term in it. To exclude the usage is to exclude a material term of 
 the contract, and must lead to an unjust decision. 
 
 Of course this could be no reason for a decision contrary to authority, 
 but we think any one who reads the judgment of the court in Trueman 
 V. Loder i with attention will perceive how much it was influenced by a 
 feeling of the supposed inconvenience of receiving any parol evidence 
 in the case of a written contract. And as it was not necessary to the 
 decision of the case then before the court, we are not bound by it now ; 
 and we did not hold ourselves bound by it in the case of Broime v. 
 Byrne,^ when it was brought to our notice. 
 
 For the reasons we have given, we are of opinion that the evidence 
 was receivable, and that the rule to enter a nonsuit should be dis- 
 charged. 
 
 Rule discharged.^ 
 
 1 11 Ad. & E. 589. In the Exchequer Obamber, El. Bl. & El. 
 
 2 3 El. & Bl. 708. 1004. 
 s The Judgment was aftertrards afflrmed 
 
INTEBPEETATION OF WILLS. 351 
 
 Illustrative Cases. 
 
 27. TO INTERPRET WILLS. 
 
 Eyeess V. Wheeler.* 
 In the Supreme Court of Neio TorJc, October, 1839. 
 
 Hon. Samuel Nelson, Cliief Justice. 
 
 Greene 0. Bronson, 
 EsBK Cowan, 
 
 > Judges. 
 
 A testator gave to certain devisees " all my back lands." Seld, tliat parol evidence was 
 admissible to designate the premises, as by showing that certain lands owned by him 
 were nsnally known by that description to him, and among his family and neighbors. 
 
 This was an action of ejectment, tried at the Yates Circuit in Decem- 
 ber, 1838, before the Hon. Daniel Mosely, one of the circuit judges. 
 
 The plaintiffs claimed to recover one hundred and nine acres of land 
 situated in the town of Milo, in the county of Yates, under a devise 
 in the last will and testament of Gozen Eyerss, of Richmond, in this 
 State, bearing date the 21st of October, 1800, in these words: " Item: 
 I give and bequeath all my back lands to my grandchildren now living, and 
 to those that may [be] born hereafter, share and share alike in severalty, 
 each to receive his or her share as they respectively become of age, and 
 to their heirs and assigns forever." By previous devises in the same 
 will he had given sundry parcels of real estate, situate in the county of 
 Richmond, to a son, daughter, and grandchild. The plaintiffs proved 
 that the testator, Gozen Ryerss, was the owner of a tract of two thou- 
 sand four hundred or two thousand six hundred acres of land in th,e 
 vicinity of the court-house in Yates County; that these lands were 
 called by the testator his back lands, and were also so called and known 
 by his family and neighbors on Staten Island. The witness who proved 
 this fact testified that his father-in-law, not the testator, who also 
 resided on Staten Island, and himself, whilst he resided there, owned 
 lands in the western part of this State, and that they also called their 
 lands back lands. The whole of this evidence in relation to the name 
 by which these lands were known, and particularly as to the declarations 
 of the testator designating the lands as back lands, was objected to by 
 the defendant's counsel, but the objection was overruled. The plaintiffs 
 were nine in number, and the declaration contained nine counts. The 
 sixth count was in the names of Gozen Adrian Ryerss and Thomas 
 Baxter, claiming the whole of the premises in fee. There was evidence 
 adduced to show title in all the plaintiffs named in the declaration as 
 
 N * Reported 22 Wend. 148. 
 
362 THEIK ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Ryerss v. Wheeler. 
 
 derived from the grandchildren of the testator, but the plaintiffs' 
 counsel finally abandoned all the counts except the sixth, and having 
 succeeded in showing title in the plaintiffs named in that count to a 
 moiety of the premises claimed, rested. The defendant's counsel 
 thereupon moved for a nonsuit, on the grounds (1) that the plain- 
 tiffs had failed to show any title to the premises in question, by reason 
 of the uncertainty of the term " back lands," and (2) that the plaintiffs 
 named in the sixth count had shown title to only a moiety, whereas in 
 the count they claimed the whole of the premises. The circuit judge 
 granted a nonsuit, without stating the grounds upon which the order for 
 the nonsuit was made. The plaintiffs ask for a new trial. 
 
 ff. Wells, for the plaintiffs ; B. Davis Noxon, for the defendant. 
 
 CowEN, J. , delivered the opinion of the court. 
 
 I can hardly think the judge, in granting the motion for a nonsuit, 
 laid any considerable stress upon the supposed variance between the 
 proof and the sixth count. Whethej- the plaintiffs had made title in 
 severalty or in common, the judge had a right to disregard the variance, 
 in his discretion, and probably would have done so, though I admit this 
 lay in his discretion, i Under the peculiar circumstances of this case, 
 the plaintiffs may, if they shall be so advised, amend by adding counts 
 or modifying those already in the declaration, in such a manner as to 
 avoid any variance from the proof at the trial. 
 
 We are entireily satisfied that a new trial shall be granted on the first 
 ground taken for a nonsuit. The term "back lands " was, it is true, in- 
 sufficient of itself to designate any particular class of lands owned by the 
 testator. It was uncertain, and might refer to different objects, or to 
 none upon which any distinctive character could be fastened by extrinsic 
 proof. But, id certum est, quod certum reddi potest. You must, in the 
 most accurate description, go out of the instrument in order to apply it 
 to the subject-matter of the devise or grant ; ^ and, as far as we are able 
 to collect from the evidence, that was effectually done in this case — at 
 least, a jury might have so understood the testimony of Mersereau. The 
 premises in question, and other lands in the same vicinity, were known 
 and called by the testator during his lifetime, and by his family and 
 neighborhood, bacTe lands. This is like a man's making a map of his 
 lands, on which he designates certain parcels by certain names, and then 
 devises or conveys them accordingly. A nickname, or a name by repu- 
 tation, given by the testator and current in his family and neighborhood, 
 
 ' Holmes «. Seely, 17 Wend. 75, 79, 80; (8th London ed.) 731; 1 Id. (7th ed.), with 
 
 Weed t>. Saratoga, etc., E. Co., 19 Wend. S41, jiotes by Cowen & Hill, note 957, p. 1899; 
 
 **^; ^. Sutherland, J., in Jackson, ex dem. Lowell, 
 
 ' Wigr. on Extr. Bv. 88, tt; 2 Ph. on Ev. v. Parkhuret, 1 Wend. 374. 
 
INTEKPRETATION OF WILLS. 363 
 
 Illustrative Cases. 
 
 is suflScient to designate the devisee, and why not the subject-matter 
 devised. 
 
 The rule that, to be valid, a -will or other writing must be certain in 
 itself, has no application, except to such particulars as do not in their 
 own nature refer to any thing dehors the instrument in question. A 
 devise to A. and B., and his heirs, might be irremediably uncertain in 
 respect to what heirs are intended. But the parcels in a devise always 
 lie out of it, and must be sought by evidence aliunde. The search may, 
 indeed, be unavailing, but still there is the right of search, and ques- 
 tions are thus every day raised for the jury. 
 
 The form of one of the objections at the trial seems to suppose that 
 the testimony came within those cases which refuse the testator's decla- 
 rations intended by him directly to explain the words of his will ; and I 
 agree that such declarations, especially if they were made at the time of 
 framing the will, are not admissible. Sir John Leach, in Goblet v. 
 Beechey,^ rejecting the evidence of Mary Holt, which related to what 
 NolleMns said at the time of her witnessing his will, Lord Thuelow 
 said, very properly, in Tonnereau v. Poyntz :^ "I lay out of the case all 
 declarations of the testatrix of what she really meant to give at the 
 time of making her will, and all state of her property from whence it 
 might be inferred what she meant." But he immediately added : " You 
 must hear evidence concerning the subject to which the will applies, in 
 order to see whether the description applies aptly or not." All the 
 cases agree that this latter rule lets in what the testator has done to his 
 property in altering its nature or itig form. His acts have thus left it 
 within or taken it out of the description, and there are several cases 
 that his declarations are admissible for the like purpose of applying the 
 description. Sandford v. Bailees ^ will serve in a good measure to iUus- 
 ti-ate both propositions. The testator had ordered timber to be cut down 
 on Ms Youlston estate to the value of £10,000 ; afterwards he devised 
 a house, which he had before agreed for the purchase of, to one Sand- 
 ford, and added in his wUl, " which [house] is to be paid for out of 
 timber which I have ordered to be cut down." Sandford filed his biU 
 to compel the application of the Youlston estate timber to the purpose 
 of paying for his house. It was denied by the defendants that the will 
 could be explained by evidence of what the testator had directed as to 
 cutting down the timber. To which the Master of the Rolls (Sir Wh-liam 
 Gbant) answered : * ' I had always understood that where the subj ect of 
 a devise was described by reference to some extrinsic fact, it was not 
 merely competent, but necessary, to admit extrinsic evidence to ascer- 
 
 > Wigr. on Extr. Ev. 151. " 1 Bro. C. 0. «7. » 7 Mer. 616. 
 
354 THEIB ADMISSIBILITr TO EXPLAIN CONTRACTS. 
 
 Ryerss v. Wheeler. 
 
 tain the fact, and through that medium to ascertain the subject of the 
 devise. Here the question is not upon the devise, but upon the subject 
 of it. Nothing is offered in explanation of the will, or in addition to 
 it. The evidence is only to ascertain what is Included in the description 
 of the thing devised. When there is a devise of the estate purchased 
 of A., or of the farm in the occupation of B., nobody can tell what is 
 given till it is shown by extrinsic evidence what estate it was purchased of 
 A. or what farm was in the occupation of B. What is there in the fact 
 here referred to — viz. , an antecedent order for cutting down timber — 
 that makes it less a subject of extrinsic evidence than such an one as I 
 have alluded to? The moment it is shown that it was a given number 
 of trees growing in such a place, or £10,000 worth in value of the tim- 
 ber of such an estate, that the testator had ordered to be cut down, the 
 subject of the devise is rendered as certain as if the number, value, or 
 situation of the trees had been specified in the will." 
 
 Then, in respect to the name of an estate fixed by the declarations of 
 the testator. In Doe, ex dem. Beach, v. Earl of Jersey,^ the testator 
 devised thus: "All my Briton Ferry estate, and all my P. C. estate, 
 which, as well as my Briton Ferry estate, lies in the county of Gla^ 
 morgan. ' ' The court held that the devisee was not confined to the Briton 
 Ferry estate lying within the county of Glamorgan, but might recover 
 certain premises lying in Brecon, out of the parish of Briton Ferry, and 
 out of Glamorgan, because the premises had been known and reputed 
 as a part of the Briton Ferry estate. Abbott, C. J., said the words 
 '"all that, my Briton estate,' etc. , denote a property known to the testa- 
 trix by the name of her Briton Ferry estate." Among other things, the 
 entries of the stewards of the testatrix and her predecessors, in which 
 they called the premises in question "Briton Ferry estate, in the county 
 of Brecon," were held to have been properly received at the trial. In 
 short, the case was in principle precisely the one before us. Evidence 
 was received, both of the testatrix's own declarations and those made 
 by her agent, the steward, and the reputed name under which the parcel 
 was comprehended. Abbott, C. J., added that the question was one 
 of parcel or no parcel, and the purpose of the evidence was so obvious 
 that the judge did right in receiving it without the counsel being put to 
 specify the object with a view to which it was offered. The case of 
 Hatch V. Hatch ^ is also in point. 
 
 It is very common that neither the judge nor jury can understand the 
 
 » 1 Barn. & AW. 660; in King's Bench, 3 « s Hsvw 3S. 
 
 liarn. A Grass. 870; $. e. In House ol Lords. 
 
INTERPRETATION OF WILLS. 355 
 
 Illustrative Cases. 
 
 meaning of a word used to denote the subject of bequest or devise. 
 The testator may express himself in a foreign language, or use terms 
 with which, as a member of a particular trade or calling, he is familiar,* 
 or in language which has a provincial or local meaning.^ In either case, 
 persons acquainted with the meaning of the words must be received 
 as witnesses to translate or define them.^ Nollekens, the sculptor, 
 bequeathed " all the marble in the yard, the tools in the shop, bankers, 
 ' mod.,' etc.," and sculptors were received to show that " mod." meant 
 models, and then what the latter word was understood to import among 
 sculptors.* I mentioned a devise to another by a nickname. In 
 Andrews v. Thomas,^ Sir Llotd Kekton admitted you may prove that 
 the testator usually called the devisee by that name. Again, in Herbert 
 V. Beid,^ the testator bequeathed £500 to Jane Herbert if in his service 
 at the time of his decease. She lived with and served the testator some 
 time, but left his house shortly before Ms death ; and his declarations 
 soon after she left were received to show that he still considered the 
 legacy as her due, and that she was to return if he got well. And it 
 was inferred, on the whole of what he said, that he did not consider her 
 as having quit his service, though she had actually left the house. She 
 therefore obtained a decree for the legacy. 
 
 So much for the declarations of the testator. They are clearly 
 receivable as giving a name or character either to the devisee or the 
 property devised ; and that, too, as appears by the cases, whether such 
 declarations be made before or after the will was executed. 
 
 In the case at bar, the name of the premises in question, as given by 
 the testator when he talked of them, was "back lands." Sometimes he 
 gave them another name, but I understand the evidence to be that he 
 most usually called them " back lands ; " and there can be no doubt that 
 proof to show the prevalent name in his family and neighborhood, which 
 was also "back lands," is admissible. None of the evidence given 
 tended to, or detracted from the language of the will, but merely to 
 explain and give meaning to that language. It was different in the case 
 of Doe, ex dem. Chichester, v. Oxenden,'' a case mainly relied on by 
 the defendant's counsel. The devise there was, " I give my estate of 
 Ashton." The testator had an estate which he used to call his Ashton 
 estate, only a part of which was locally situate at Ashton. His delara- 
 tions giving a name to the estate, and the acts of his steward, were 
 
 ' Wigr. on Extr. Ev. 34, 36. '1 Cox, 225. 
 
 ' Gresh. on Eq. Et. 199. « 16 Ves. 481. 
 
 '. Ibid. ' 3 Taun. 147. 
 
 « Goblet V. Beechey, 3 Sim. 24; Wigr. on 
 Extr. Ev. 139. 
 
356 THEIR ADMISSIBIHTr TO EXPLAIN CONTBACTS. 
 
 Tllley V. City of Chicago. 
 
 denied as evidence that he intended to devise his whole Ashton estate.. 
 But this was on the ground that the words meant an estate locally 
 situate at Ashton ; i and to receive the testator's declarations going to 
 show the contrary would, therefore, be to contradict the language of the 
 TmR.^ The learned writer thinks that the principle of adhering to local 
 description was carried in this case to its utmost extent. But the 
 decision was aflSrmed in the House of Lords.^ 
 
 New trial granted, the costs to abide the event, with leave to amend 
 narr. on same terms. 
 
 New trial granted. 
 
 28. NOT ADMISSIBLE WHERE NO CONTEACT IS SHOWN. 
 
 TiLLET V. City of Chicago.* 
 In the Supreme Court of the United States, October Term, 1880. 
 
 Hon. Morrison B. Waitb, Chief Justice. 
 " Joseph P. Bradley, 
 " John M. Harlan, 
 " Samuel F. Miller, 
 " Stephen J. Field, 
 " William B. Woods, 
 
 Associate Justices.^ 
 
 1. In the absence of a contract, evidence of usage and custom Is irrelevant. 
 
 a. The authorized officers of a municipality having decided to erect a public building, 
 offered prizes for the beet plans, with cost, etc. T., an architect, was awarded one of 
 the prizes, with notice that " the award should not be considered as indicating a prefer- 
 ence for either of said plans, as to which should be finally adopted, from which the said 
 buUding should be erected," and the amount of the prize (?1,000) was paid to him. Sub- 
 sequently, by resolution, the officers adopted T.'s plan, subject to conditions. BOd, 
 that this resolution was a voluntary act of the officers, and did not amount to a contract 
 between them and T. Seld, further, that in an action by T. against the officers, evi- 
 dence of a usage and custom among architects that in the absence of a special contract 
 the superintendence of the construction of a buUding belongs to the architect whose 
 plans are adopted, and that where prizes for plans are offered the plans of the successful 
 competitors belong to them, and if subsequently adopted as the plans to build by, they 
 are always paid for in addition to the prize itself, was properly excluded. 
 
 In error to the Circuit Court of the United States for the Northern 
 District of Illinois. 
 
 ♦ Not yet reported, 
 t Mr. Justice Clifford and Mr. Justice Hunt did not sit. 
 
 1 Per Holroyd, J., in the course of the Doe, ox dem.Oxenden, ©.Chichester, 4 Dow, 
 argument of Doe, ex dem. Beach, v. Earl of 92 e« »«?., In the House of Lords 
 Jersey, 1 Barn. & Aid. 554; Gibbs, 0. J., in a wigr. on Extr. Ev. 16, Prop. U. 19, 60. 
 
 » 4 Dow H. L. 65. 
 
CONTRACT ALWAYS REQUISITE. 357 
 
 Illustrative Cases. 
 
 Mr. Justice Woods delivered the opinion of the court. 
 
 This was an action of assumpsit, brought by the plaintiff in error in 
 
 the Circuit Court of the United States for the Northern District of 
 
 Illinois, jointly against the county of Cook and the city of Chicago. 
 
 The declaration consisted of the common counts for work and labor 
 
 done, goods sold and delivered, money lent and advanced, and upon 
 
 account stated. 
 The following is a copy of the account sued on, which was appended 
 
 to the declaration : — 
 
 The County of Cook and the City of Chicago, to Thomas Tilley, Dr. 
 
 For services as architect in preparing plans, drawings, 
 specifications, diagrams, estimates, and details for the 
 new court-house and city hall, and superintendence of 
 erecting the same, 5 per cent on $2,909,629, the esti- 
 mated cost of the building, the plan being that known 
 as "Eureka" $145,481 45 
 
 The defendants pleaded the general issue. 
 
 By provision of the Constitution and laws of the State of Illinois, 
 the county affairs of Cook County are managed by a board of com- 
 missioners of fifteen persons, i The affairs of the city are controlled by 
 the Common Council.® 
 
 The county of Cook was the owner of a block of ground in the city 
 of Chicago, known as the court-house square, on which it was proposed 
 to erect a building, to be used as a city hall and county court-house, in 
 which both the business of the city and county might be conducted. 
 
 On July 10, the Board of County Commissioners, and on July 15, 
 1872, the Common Council adopted, each for itself, the following reso- 
 lution : — 
 
 " Besolved, That it is the sense of the joint meeting that they recom- 
 mend to the Common Council of the city of Chicago and the Board of 
 Commissioners of Cook County that the city of Chicago and the county 
 of Cook will authorize the building committees of the several boards to 
 offer a prize of five thousand dollars ($5,000) for the best plan, two 
 thousand dollars ($2,000) for the second, and one thousand doUars 
 ($1,000) for the third best plan for a court-house and city haU, to be 
 erected jointly by the county of Cook and the city of Chicago upon 
 the pubUc square in the city of Chicago, the said plans to be submitted 
 to respective boards, in conjunction with the Board of Public Works 
 of the city of Chicago." 
 
 1 Const. 111. 1870, Art. X., sect. 7. • Prlv- I-aws 111. 1863, p. 40. 
 
358 THEIR ADMISSIBILITY TO BXPI/AIN CONTRACTS. 
 
 Tilley v. City of Chicago. 
 
 On August 5, 1872, the Common Council of the city and the Board of 
 County Commissioners both passed an order providing for a joint con- 
 tract between the city and county for the erection of a building on the 
 court-house square, and on August 28, 1872, the contract was executed 
 by the city and county authorities. It declared that it was for the pub- 
 lic convenience that the courts and offices of the city "should be 
 located at some one convenient point, and readily accessible to each 
 other," and provided for the erection by the city and coimty of a 
 public building on the court-house square, for the use of the county and 
 city governments, respectively, and the courts of record ; that the gen- 
 eral exterior design of the building should be of such uniform character 
 and appearance as might thereafter be agreed upon by the Board of 
 County Commissioners and the Common Council of the city. 
 
 The contract further provided as follows : — 
 
 " 3. That portion of the said building situate west of the north and 
 south centre line of said block shall be erected by the city of Chicago 
 at its own expense. 
 
 " 4. The city of Chicago shall occupy that portion of said block 
 west of the said centre line for a city hall, and offices incidental to the 
 administration of the city government, and for no other purpose what- 
 ever, except as hereinbefore provided. 
 
 " 5. Each of the parties will heat, light, and otherwise maintain and 
 furnish its own portion of said building." 
 
 On November 25, 1872, the building committees of the Common 
 Council and the County Commissioners published an advertisement call- 
 ing for designs for the proposed building. The advertisement declared 
 that, in order to secure suitable designs, the city and county jointly 
 offered the following premiums: For the best design, $5,000; for the 
 second best, $2,000 ; and for the third best, $1,000. It provided as 
 follows: " Each design must have a device or motto marked on each 
 drawing, and be accompanied by a sealed letter giving the name of the 
 author, which will be opened after the final award is made, only for the 
 purpose of ascertaining the names of the successful architects, and for 
 the return of the unsuccessful drawings to their authors. Each com- 
 petitor will give the cubical contents of his building, and an estimate of 
 the cost of the same complete." 
 
 Designs were submitted by a large number of architects, and the 
 building committees of the City Council and the Board of County Com- 
 missioners made a report awarding the prizes. The plaintiff in error, 
 who had adopted for his drawing the word " Eureka " as the device or 
 motto to distinguish it, was awarded the third prize of $1,000. 
 
A CONTRACT ALWAYS BEQUISlXJS. 359 
 
 Illustrative Cases. 
 
 On August 4 the County Board, and on August 18, 1873, the City 
 CouncU, adopted the following resolution: "That the report of the 
 majority of the joint committee awarding the prizes for plans of court- 
 house and city hall shall he concurred in and the award coniirmed; 
 provided, that nothing herein or in said report contained shall be con- 
 strued as indicating a preference for either of said plans, as to which 
 shall be finally adopted, from which the said building shall be erected." 
 
 The plaintiff in error was paid the thousand dollars awarded to him 
 as a prize. 
 
 Afterwards, on August 25, the County Commissioners, and on Octo- 
 ber 10, 1873, the City Council, adopted the f oUowing resolution : ' ' That 
 the plan known as ' Eureka,' or number 5 (five), in the collection sub- 
 mitted for court-house and city hall, be, and is hereby selected and 
 adopted as the plan after which to build such court-house and city hall 
 (the Board of Commissioners of Cook County concurring), subject to 
 such change and modifications as may hereafter be determined upon by 
 the Common Council of the city of Chicago and the County Board, pro- 
 vided the estimate of the architect ^ho presented said plan, as to the 
 cost of construction of the building, shall be verified." 
 
 Upon the trial of the case, the testimony tending to establish the facts 
 above recited having been given in evidence by the plaintiff, he was 
 Bworn as a witness in his own behalf, and testified that he was an archi- 
 tect of fifteen years' standing ; that he had made the design designated 
 by the word " Eureka ;" and that, after the passage by the City Council 
 and Board of County Commissioners of the resolution last above men- 
 tioned, he had verified the cost of the construction of the proposed 
 building in the way customary and usual with architects, which was 
 made up at the rate of thirty-five cents per cubic foot for the building, 
 and was indorsed by f cfurteen or fifteen architects. 
 
 The plaintiff produced before the jury all his plans for which the 
 prize had been awarded him. He offered to prove their value, and 
 offered to prove the time employed and expense incurred in the prepara- 
 tion of them. The court excluded the evidence so offered. 
 
 The plaintiff further offered evidence to establish that by the usage 
 and custom of architects, in the absence of a special contract, the 
 superintendence of the construction of a building belonged to the archi- 
 tect whose plans were adopted. This was also excluded. 
 
 The plaintiff also offered evidence to prove that by the usage and 
 custom of architects, where prizes for plans were offered, the plains , of 
 the successful competitors belonged to them; and, if subsequently 
 adopted as the plans to build by, were always paid for in addition to 
 
360 THEIR ADMISSIBILITY TO EXPLAIN OOOTRACT8. 
 
 Tilley v. City of Chicago. 
 
 the prize itself . To tliis defendants objected, and tlie, court sustained 
 the objection. 
 
 The plaintiff also offered evidence to establish the value of the 
 services rendered iii verifying the cost of the proposed building accord- 
 ing to the " Eureka" plans, to which the defendants objected, and the 
 court sustained the objection. 
 
 This was all the evidence given, or offered to be given in the cause. 
 
 The plaintiff then rested his case ; whereupon the court directed the 
 jury to find for the defendants. 
 
 The jury returned a verdict for defendants as directed by the court, 
 and judgment was entered therein. To reverse this judgment this writ 
 of error was brought. It will be observed that no evidence was intro- 
 duced or offered to show that the plans of the plaintiff were used by the 
 defendants, or either of them, or that the building for which they were 
 used was ever erected. It is clear that if the plaintiff has any right of 
 action it must arise on the resolutions adopted by the Board of County 
 Commissioners August 25, and the City Council October 10, 1873. 
 AU that had taken place before those dates was the making of a contract 
 between the 'city and the county, by which they agreed to join in the 
 erection of a public building in the court-house square, each party to 
 build and pay for its own part of the structure ; an offer by the city and 
 county of three prizes for the best plans ; an award of the prizes, by 
 which the third prize of $1,000 was given to the plaintiff in error, with 
 the distinct notice that ' ' the award should not be considered as indicat- 
 ing a preference for either of said plans, as to which should be finally 
 adopted, from which the said building should be erected," and the pay- 
 ment to, and the receipt by the plaintiff of the prize awarded him. 
 
 By the payment to the plaintiff in error of the prize, the defendants 
 discharged every obligation due from them to him aiising out of the 
 preparation of plans for the proposed building. Upon that payment 
 being made, no contract whatever, either express or implied, existed 
 between the plaintiff and the defendants. If, therefore, the plaintiff 
 had any right of action against defendants, it must have arisen by 
 reason of the adoption of the resolution just mentioned, and what was 
 done by plaintiff after its adoption. 
 
 The resolution was the voluntary act of the City Council and County 
 Commissioners. It was not a proposition, but simply the expression of 
 a purpose to build their structure after the plans of the plaintiff, subject 
 to such changes and modifications as might thereafter be determined 
 upon by the Common Council and the County Board. The resolution 
 was not adopted at the instance or suggestion of the plaintiff. Suppose 
 
A CONTRACT ALWAYS REQUISITE. 361 
 
 Illustrative Cases. 
 
 that -the day after its adoption the resdutioa had been reconsidered and 
 rescinded, would the defendants nevertheless have been liable for the 
 value of the plans, and for five per cent on the estimated cost of 
 the building for superintendence, amounting in the aggregate to near 
 $146,000? 
 
 Suppose a private person should announce his purpose to build a 
 house after a design which he had seen in an architect's office, but 
 before he begins the execution of his purpose, changes his mind, never 
 calls for or uses the plans, or even builds the house, is he lifible to the 
 architect for the value of the plans and for superintendence ? In such 
 a case there certainly is no contract between him and the architect upon 
 which a recovery can be based. 
 
 The claim of the plaintiff is, that by the adoption of the resolution by 
 the City Council and the County Board, without any act done or assent 
 on his part, they were bound to go on and erect the building on his 
 plans, and expend $2,909,000, its estimated cost. 
 
 The resolution did not bind the plaintiff to furnish his plans and 
 superintend the building. There was no mutuality, and, therefore, no 
 consideration, both of which are essential to a contract. Notwith- 
 standing the resolution, the plaintiff might have said, "I will not furnish 
 my plans, and I wiU not superintend the building," and the defendants 
 would have had no claim on him. 
 
 If one does not accede to a promise as made, the other party is not 
 bound by it.^ When A. signs a writing by which he declares he will 
 sell to B. his house at a certain price, this is a mere proposition, and not 
 a contract.^ In Wood v. Edwards,^ where A. wrote that he had agreed 
 to a substitute for an existing agreement, which he would execute, 
 Spencek, C. J. , said the proposition of A. to excute the new agreement 
 was not binding on him, as well on the ground of want of consideration 
 as want of mutuality, since the plaintiffs on their part were not bound 
 to execute the agreement. In the case of Kingston v. Phelps,* the 
 plaintiff proved that the defendant consented to be bound by an award 
 to be made on a submission by other underwriters on the same policy, 
 bnt the witness proved no agreement on the part of the plaintiff to be 
 bound by the award. Lord Kenton held there was no mutuality, and, 
 therefore, the defendant's agreement was a mere nudum pactum. 
 ■ An offer of a bargain by one person to another imposes no obligation 
 upon the former, unless it is accepted by the latter upon the terms on 
 
 ' Tuttle V. Lore, 7 Johns. 470. ' 19 Johns. 205. 
 
 ' Tucker v. Woods, 12 Johns. 189, • Peake N. P. 227. 
 
362 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Tllley V. City of Chicago. 
 
 which the offer was made. Any qualiflcatioii of or departure from these 
 terms invalidates the offer, unless the same be agreed to by the party 
 who made it.^ 
 
 In this case, there being only an expression of purpose by one parly 
 to erect a building according to plans antecedently made by another, 
 and no obligation entered into by the other party, and no plans used 
 or building erected, there was no contract between the parties, either 
 express or implied. 
 
 If we are correct in this conclusion, then all the evidence offered by 
 the plaintiff to prove the value of the plans, and the time employed and 
 the expenses incurred in their preparation, was irrelevant.and immaterial. 
 
 The only purpose for which such evidence could be admitted would 
 be to prove the damage sustained by the plaintiff by the breach of 
 his alleged contract with the defendants. But if he had no contract, 
 express or implied, he was entitled to no damage, and could show none. 
 
 It is complained that the evidence offered to prove the custom of 
 architects was excluded. We think it was rightly excluded. Proof of 
 usage can only be received to show the intention or tmderstanding 
 of the parties, in the absence of a special agreement, or to explain the 
 terms of a written contract. ^ In all cases where evidence of usage is 
 received, the rule must be taken with this qualification : that the evidence 
 be not repugnant to, or inconsistent with the contract.' The inference 
 from these principles is inevitable, that unless some contract is shown, 
 evidence of usage or custom is immaterial. 
 
 The plaintiff in error says he was ready to prove a custom of archi- 
 tects that when prizes were offered for plans of a building the suc- 
 cessful competitor remained the owner of his own designs, and if they 
 were adopted he was entitled to compensation therefor in addition to 
 the prize, and that by the same custom the adoption of his plans 
 entitled him to superintend the erection of the building, and to the usual 
 remuneration therefor. He claims, therefore, that, in view of this cus- 
 tom, the adoption of his plana by the passage of the resolution referred 
 to, by the city and county boai-ds, amounted to a contract on the part 
 of the defendants to pay for the plans, and employ him to superintend 
 the erection of the building and pay him therefor. 
 
 ' Eliason v. Henshaw, i Wheat. 225. See ' Holding v. Pigott, 7 Bing. 465, 474; Clark 
 
 alBO Welch v. Alton, etc., Ins. Co., 10 111. 225 ; v. Roystone, 13 Mee. & W. 762 ; Yates v. Plm, 
 
 McClay V. Harvey, 90 111. 625. Holt N. P. 95 ; Trueman v. Loder, 11 Ad. & E. 
 
 ^ Hutchinson v. Tatham, L. B. 8 C. P. 482; 589; Bliven v. New England Screw Co., 23 
 
 Field V. Lelean, 80 L. J. (Exch.) 168; Bay- How. 480. 
 water v. Richardson, 1 Ad. & E. 508; Robin- 
 son V. United States, 13 Wall. 363. 
 
A CONTRACT AL\VaTS REQUISITE. 363 
 
 Illustrative Cases. 
 
 The offer of the plaintiff in error to prove certaia facts having been 
 rejected, he must he presumed to be able to prove what he offered to 
 prove. We must therefore assume that the custom which he offered 
 to prove did in fact esdst. But what was that custom? Clearly, that 
 if the building was erected according to the successful plans the archi- 
 tect was entitled to pay therefor. That was such an acceptance and 
 adoption of his plans as would give him the right to compensation 
 therefor, and the right to superintend the erection of the building and 
 receive the usual remuneration. The custom certainly did not bind the 
 party who offered prizes for plans, after having paid the prizes, to pay 
 also for plans that he never used, and for superintendence of a building 
 that he never erected, merely because he had selected a particular plan 
 and announced his purpose to build in accordance with it. If such 
 were the custom and usage of architects in Chicago, it was an absurd 
 and unreasonable custom, and therefore not binding, i 
 
 If the plaintiff in error had offered to show that, after the passage of 
 the resolution by which his plan was accepted, the, defendants had 
 erected their building according to his plans, then the evidence of the 
 custom would have been pertinent. But he made no such offer, and it 
 is to be presumed no such fact existed. The evidence of this custom 
 was therefore properly excluded. 
 
 The plaintiff in error complains that he was not allowed to prove the 
 value of Ms services in verifying the cost of the proposed building 
 according to his plans. 
 
 We think the court was right in excluding this evidence. There was 
 no proof, nor any offer of proof, to show that the services of the plaintiff 
 were rendered at the instance or request of defendants, or either of 
 them. From all that appears, the services were voluntarily rendered by 
 the defendant, and no use whatever was made of the results of his inves- 
 tigation. The law, therefore, does not imply a contract to pay for 
 them, and proof of their value was quite immaterial. 
 
 The evidence rejected was. properly excluded on another ground. 
 The defendants were charged in the declaration with a joint liability, 
 but there was no privity between them, either by law or contract. The 
 evidence offered was to show a joint liability. So far as it went, it 
 failed to do this ; on the contrary, it was made to appear that each of 
 the defendants was building its own part of the structure at its own 
 expense, and for its own use. After the award and payment of the 
 
 » United States v. Buchanan, 8 How. 83 ; s.c.3 Wash. 0. Ct. 149. 
 
364 THEIR ADMISSIBILITY TO EXPLAIN CONTEACT8. 
 
 Parol Evidence — When Admissible. 
 
 prizes, they assumed no joint liability, as the evidence admitted clearly 
 showed. And the evidence offered did not tend to establish a joint 
 liability. It did not, therefore, support the case made in the declara- 
 tion, and was properly excluded from the jury. As the plaintiff asked 
 no leave to amend, this ruling of the court is not a ground of error. 
 
 We find no error in the record. The judgment of the Circuit Court 
 must be affirmed. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 179. Parol Brtdence not receivable to vary or contradict a Writing. — 
 It is a general and well-known rule of law that parol evidence cannot be re- 
 ceived to contradict, vary, add to, or subtract from the terms of a written 
 instrument.' This rule is, however, subject to the exceptions that a " latent 
 ambiguity " may be explained,^ or that it may be shown that a contemporaneous 
 or supplementary agreement on a collateral matter had been entered into,' or 
 that the instrument is void or of no effect because it was obtained by forgery 
 
 > Go8s V. Lord Kngent, 5 Barn. & Adol. 
 64 ; Meres v. Ansell, 3 Wils. 275 ; Ogilvie i). 
 Foljambe, 3 Mer. 63; Attwood v. Small, 6 
 CI. & Fin. 232; Besant v. Grose, 10 0. B. 89S; 
 Oanie v. Horsfall, 2 Car. & Kir. 319; Gilt- 
 ton V. Walmesley, 5 Term Bep, 561 ; Henson 
 V. Cooper, 3 Scott N. B. 18; Harnor v. 
 Groves, 15 G. B. 667 ; Preston v. Merceau, 2 
 W. Black. 1219; Adams ». Wordley, 1 Mee. & 
 W. 374; Perkins v. Young, 16 Gray, 389; 
 Cocke V. Bailey, 12 Miss. 81 ; Eirk v. Hart- 
 man, 63 Pa. St. 97 ; HaUiday v. Hart, 30 N. Y. 
 471 ; Brwin v. Saunders, 1 Cow. 249 ; Mott v. 
 Richtmeyer, 67 N. Y. 19; Van Bokelen v. 
 Taylor, 62 N. Y. 105 ; Heilner v. Imbrie, 6 
 Serg. &E. 101; Hageyu. Hill, 75 Pa. St. 108; 
 Pennsylvania Canal Co. v. Belts, 1 W. N. 
 O. 328; Gavinzel ». Crump, 22 Wall. 308; 
 Eveleth v. Wilson, 15 Me. 109; Bromley v. 
 Elliott, 38 N. H. 287 ; Bond v. Clark, 86 Vt. 
 577; Bleckley v. Munson, 18 Conn. 299; 
 Rogers v. Colt, 21 N. J. L. 701; Young v. 
 Frost, 5 Gill, 287; Hill v. Peyton, 21 Gratt. 
 886; Fankboner v. Fankboner, 20 Ind. 62; 
 Johnson v. Pollock, 58 111. 181 ; Warren v. 
 Grew, 22 Iowa, 315; Irish v. Dean, 89 Wis. 
 662; Ruiz V. Norton, 1 Gal. 359; Lemaster n. 
 Burckhart, 2 Bibb, 25 ; Falconer v. Garrison, 
 1 McCord, 209; Davis v. Moody, 16 Ga. 17.5; 
 West «. Kelly, 19 Ala. 258; Layoock v. David- 
 
 son, 11 La. An. 328; Peers v. Davis, 29 Mo. 
 181; Koehring v. Moemminghoff, 61 Mo. 
 103; Richardson v. Comstock, 21 Ark. 69; 
 Donley v. I.ush, 11 Texas, 1. See, further, 
 Greenl. on Ev., §§ 275-281; Whart. on Ev., { 
 920 et teq. 
 
 2 Doe V. Hlscocks, 6 Mee. & W. 363; Box 
 V. Lainden, 8 Term Rep. 879; Cocker ». Guy, 
 2 Bos. & Pul. 665; Paddock v. Fradley, 1 
 Gromp. & J. 90; Norman v. Morrill, 1 Ves. 
 760; Grey w. Harper, 1 Story, 671; Goldshede 
 V. Swan, 1 Exch. 158 ; Verzan t>. McGregor, 
 23 Gal. 339 ; Hinnemann v. Bosenbaok, 39 N. 
 Y. 98; Waymack v. Heilman, 26 Ark. 449; 
 Wood V. Augustine, 61 Mo. 46; Baldwin e. 
 Winslow, 2 Minn. 213; Fenderson v. Owen, 
 51 Me. 871; Stone v. Aldrlch, 43 N. H. 62; 
 Simpson V. Kimberlin, 12 Kan. 579; Jenkins 
 V. Cooper, 50 Ala. 419 ; American Express Op. 
 I). Schier, 55 111. 110 ; Lowry v. Adams, 22 Vt. 
 160; Conover v. Wardell, 20 N. J. Bq. 266; 
 Davis V. Shaw, 42 Md. 110; Terrell «. Walker, 
 69 N. C. 214; Pointdoxter ». Cannon, 1 Dev. 
 Eq. 873; Armstrong v. Burrows, 6 Watts, 
 266; Insurance Co. v. Troop, 22 Mich. 146; 
 Greene v. Day, 81 Iowa, 328. 
 
 ' Lindley v. Laoey, 17 O. B. (N. 8.) 558; 
 Brady v. Oastler, 3 Hurl. &, Oolt. 112; Malpas 
 V. London, etc., R. Co., L. B. 1 0. P. 336. 
 
WRITINGS AND PAROL EVIDENCE. 365 
 
 General Kales. 
 
 or fraud,' or through duress,' or was made in furtherance of an illegal object,' or 
 by persons incapable of contracting,* or that it was contingent on an event 
 which is unperformed,* or that the consideration has failed,* or that it has been 
 dissolved by a subsequent agreement.' It is not proposed to illustrate these 
 different exceptions by any statement of the facts of the particular cases, as 
 these questions are not within the scope of our examination, which in this chap- 
 ter will be confined to the cases in which proof of usage and custom has been 
 admitted by the courts, frequently to explain, and sometimes to change the 
 ambiguous or the apparent meaning of written contracts. 
 
 § 180. Admissibility of Evidence of Usage — Views of Mr. Browne. — Mr. 
 Browne,* referring to the admissibility of evidence of usage to affect written 
 contracts, says : " One of the most important questions which falls under our 
 consideration in connection with a study of the law of custom is as to the 
 admissibility of evidence of a usage for the purpose of modifying the meaning 
 of a written contract. This question has to be practically answered upon very 
 many occasions in modern courts of law, and the freiquency with which this 
 matter is brought under judicial notice is to be accounted for by our great 
 commercial prosperity, which has increased the extent of our trade and the 
 energy of those who are employed in it, and has produced an intense vitality in 
 relation to the various conveniences of transaction, which has resulted in many 
 useful and admirable customs which may well become a part of the common law 
 of the land. Whenever a country is progressive, its laws tend to improve. But 
 there is one incident of the improvement of a jurisprudence which it is of much 
 importance to note in this place. As a country becomes more civilized, its 
 criminal laws become less severe, but at the same time its laws of evidence 
 seem to become less strict. Just as there is no necessity for heavy pains and 
 penalties in a country where life and property are respected, where moral prin- 
 ciple keeps the hands of the people from violence and from fraud, so, in a 
 country where truth is common, where people have become intelligent enough 
 to presume that a lie is always a mistake, there is not the same necessity for the 
 strictness of proof which is felt in a less civilized community. Those who look 
 
 1 Collins v.Blantern, 3 Wils. 341; Prentiss -Waymellu. Eeed, 5 TermlSep. 600; Briggsji. 
 
 o.Bu8S,16 Me.SO; Grideri;. Clopton,27 Ark. Lawrence, 3 Term Eep. 454; Norman w. 
 
 244; Homo. Brooks, 61 Pa. St. 407; Burtners Oole,3Bsp. 263; Chamberlain «,MoClurg,8 
 
 V. Eeran, 24 Gratt. 42; LuU v. Cass, 43 N. H. Watts & S. 31; Shaoklord v. Newington, 46 
 
 62; Franchot w. Leach, 5 Cow. 608; Mitchell N. H. 415; Williams v. Donaldson, 8 Iowa, 
 
 V. UcDongal, 62 in. 498; Jamison v. Ludlow, 109; Oorbin v. Sistrunk, 19 Ala. 203; Wyman 
 
 3La. An. 492; Montgomery v. Pickering, 116 ». riske, 3 Alien 238; Martin ti. Clarke, 8 
 
 Mass. 227 ; Wrays.Wray, 32 Ind. 126; Turner B. L 389; Newsom «. Thighen, 30Mis8. 414; 
 
 II. Turner, 44 Mo. 536; McLean v. Clark, 47 Lazare v. Jacques, 15 La. An. 699; Leppoo v. 
 
 6a. 24. Bank, 32 Md. 136. 
 
 ' Paxton V, Popham, 9 East, 421 ; Olivari * Ibid. 
 
 V. Menger, 39 Texas, 76; Bosley v. Shanner, ' Pierce ti. Woodward, 6 Pick. 206; Shu- 
 
 26 Ark. 280 ; Miller i>. Miller, 68 Pa. St. 486 ; gart «. Moore, 78 Pa. St. 469. 
 
 Hibbard ». Mills, 46 Vt.243; Spaids i>.Bar- « Poster v. JoUy, 1 Cromp. M. & E. 707; 
 
 rett, 57111.289; Knapp «. Hyde, 60 Barb. 80; Solly «. Hinde, 2 Cromp. & M. 516. 
 
 Teller v. Green, 26 Mich. 70 ; Oadwallader v. ' Goss v. Lord Nugent, 5 Barn. & AdoL 64. 
 
 West, 48 Mo. 483. * Browne on Usages A Oastoms, 80. 
 
 s Benyon i>. Nettlelold, 3 Mac. & G. 94; 
 
366 THEIE ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Mr. Browne's Views. 
 
 at the history of our laws of evidence will find ample illustrations of the truth 
 of this proposition, and one chapter of that history might be written in connec- 
 tion with the way in which evidence of custom has been admitted in courts of 
 law to annex incidents to, and to explain the meaning of written instruments.' 
 * * * The reasons for the admission of parol evidence to explain a latent 
 ambiguity in a writing are clear and strong ; but where such an ambiguity can be 
 explained by a reference to an existing custom, it is evident that such proof 
 will have more authority than that which would attach to evidence of the party's 
 intentions at the time the Instrument was executed, or of his particular practice 
 in relation to certain matters, as indicating what would probably be his inten- 
 tion in framing the document. In all cases it is difficult to arrive at a man's 
 intention; and the only possible means of arriving at a correct conclusion with 
 reference to his mental attitude is by a consideration of his words and actions. 
 These, however, are apt to be misconstrued, even if they are accurately remem- 
 bered and correctly repeated or described. On the other hand, the practice of 
 all men is easy of proof, and there is the strongest presumption in favor of the 
 supposition that he who wrote the document, the ambiguity of which has to be 
 explained, did what every other body was doing — shaped his conduct according 
 to the manners and usages of his time and district; and in that way, If a usage 
 can be proved, the existence of which will explain the ambiguity, it is evidently 
 the best means of arriving at a conclusion as to the intention of the individual, 
 the explanation of whose agreement is in question. Thus it is that the proof 
 of a custom in the explanation of an ambiguity in a written instrument is not 
 only admitted, but must be regarded as parol evidence of the highest authority. 
 As a fact, evidence of usage has been admitted, from very early times, in expla- 
 nation of ambiguous grants and charters, and it has been decided that the 
 construction of such a grant is for the jury, and not for the judge.' The real 
 object of evidence under such circumstances is to place the court in the posi- 
 tion of the parties to the instrument ; and without the evidence of usage that 
 would, in a large number of cases, be impossible.* 'In a certain sense,' 
 as Lord Campbell well remarked, ' every material incident which is added 
 to a written contract varies it, makes it different from what It appeared to be, 
 and so far it is inconsistent with It. If by the side of the written contract 
 without, you write the same contract with the added incident, the two would 
 seem to import different obligations, and be different contracts.' * And in 
 another case Mr. Justice Blackburn truly remarked : ' You do not need the 
 evidence of custom unless it varies the contract, and makes it so far inconsistent 
 with and different from that which it would be without the evidence of the 
 custom.' ' It may be added, that truly every incident which is sought to be 
 attached by proof of usage is a material incident, and that, in fact, it is really 
 the addition of a term to the contract as it existed in ink. Yet the law has gone 
 on laying down the dictum that any usage which would have the effect of vary- 
 
 1 Browne on Usages & Customs, 81. Oratham, 1 Esp. 322 ; Wadley v. Bayllss, 5 
 
 » Baird v. Fortune, 7 Jur. (N. 8.) 928; Taun. 752; poa. Chap. V. 
 
 Waterpark v. Pennell, 7 H. L. Cas. 650. < Browne on Usages & Oustoma, S2. 
 
 » Doe V. BevisB, 18 L. J. (C. P.) 628 ; Beau- ' Humf rey v. Dale, anU, p. S12. 
 
 fort V. Swansea, 3 Gxch. 118 ; Kewcas(le-on- » Hyers v. Sari, 3 L. J. (Q. B.) U. 
 
 Tyne v. Bradley, 2 El. & Bl. 428; Withnell v. 
 
USAGE AND WRITTEN CONTRACTS. 367 
 
 Explanation of Technical Terms. 
 
 ing or contradicting, either expressly or by implication, the terms of a written 
 contract, is inadmissible as evidence.' The difficulty of understanding how a 
 usage which adds an incident to a written contract is to do so without varying 
 It, or without contradicting it to the extent that the assertion of something 
 concerning which it is silent is a contradiction, is, to our mind, very great. 
 That it has been the means of throwing an element of uncertainty into the 
 minds of many judges, will appear from the nature of some of the decisions.' 
 * * * We cannot see that the principles of the law have suffered by the 
 greater breadth which is thus given to interpretation of documents which have 
 a decided tendency to be too narrow for the intentions of the parties, who, 
 from their great familiarity with the incidents to the contracts they are daily in 
 the habit of entering into, are apt to leave a great part of the contract under- 
 stood, and put only a little of the less familiar matter into writing. Were the 
 law to refuse to give effect to these understandings, it would really be refusing 
 to give effect to the real intentions of the parties at the time the contract was 
 entered upon. It would likewise be throwing difficulties in the way of impor- 
 tant transactions which are often too urgent to be fully expressed in lengthy 
 documents, and would be doing something to prevent the regenerative effects 
 on law which may be looked for from custom. There is a possibility of too lax 
 an admission of custom as a force in such cases. The common business rela- 
 tions of others must not be regarded as so stringent as to bind any one to perform 
 his business in the same way. Each man is to be left free to contract in what 
 way he pleases, but when the interpretation of a usage is possible in connection 
 with a vrritten agreement, it is as fair to conclude, on the side of one of the 
 parties, that the contract was made with reference to it, as on the other side to 
 infer that it was made without any reference to it, and with the Intention of 
 excluding its effect. Thinking thus, we cannot see that the law has suffered in 
 any respect from the extension which has been allowed to the common cOndiict 
 as Interpreting the common transactions of men. Guarded by the consciousness 
 that these customs are apt to push their way into the statute-books, — and we 
 believe that it is well to be careful how they attain that position, — little evil 
 can arise." ' 
 
 §181. Usage may explain Technical or unintelligible Terms. — As Horace 
 has put it, custom is at once the arbiter and standard of language. The customs 
 of particular classes of men soon give to particular words different meanings 
 from those which they may have among other classes, or in the community gen- 
 erally. Mercantile contracts are commonly framed in a language peculiar to 
 merchants, and hardly understood outside their world. Agreements which are 
 entered into every day in the year between members of different trades and 
 professions are expressed in technical and uncommon terms. The intentions of 
 the parties, though perfectly well known to themselves, would be defeated were 
 the language employed to be strictly construed according to its ordinary mean- 
 ing in the world at large. Hence it was soon established by the courts as a 
 rule of construction that while words in a contract relating to the ordinary 
 transactions of life are to be construed according to their plain, ordinary, and 
 
 1 Menzies v. Lightloot, 40 L. J. (Oh.) 561; ' Browne on Usages & Customs, 80. 
 
 L. R. 11 Eq. 459. ' '<*■ ^- 
 
368 THKIE ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Classification of the Cases. 
 
 popular meaning, yet if, in reference to the subject-matter of the contract, par- 
 ticular words and expressions have by usage acquired a meaning different from 
 their plain, ordinary, and popular meaning, the parties using those words in 
 such a contract must be taken to have used them in their peculiar sense, and 
 that sense may be fixed by parol evidence.' In very many cases, words and 
 phrases which, if interpreted in their ordinary dictionary sense, would cause an 
 instrument to be ambiguous or meaningless, may be read in connection with 
 proof of a usage so as to make the written contract perfectly intelligible. This 
 has been repeatedly done in courts of law. Where the word has two mean- 
 ings, — one common, the other technical, — this evidence is necessary, in the 
 first place, to raise the presumption that the parties intended to use it in the 
 latter rather than in the former sense, unless, as we have said, this fact can be 
 inferred from reading the whole instrument.' But plain words have a stronger 
 presumption in their favor than ambiguous ones; and, therefore^ it has been 
 laid down that when it is sought to vary the meaning of such words, the evi- 
 dence of custom should be very strong.' The evidence is not incompetent 
 because the words are in their ordinary meaning unambiguous, for the principle 
 of admission is that words perfectly unambiguous in their ordinary meaning are 
 used by the parties in a different sense.* What words are more plain and unam- 
 biguous on their face than such words as " a thousand," " a week," " a day?" 
 Yet, as we shall see, " a thousand " has been held to mean twelve hundred; " 
 " a week," a week only during a portion of the year ; » " a day," only a working- 
 day.' And, therefore, words technical or ambiguous on their face, or foreign or 
 peculiar to the sciences or the arts, or to particular trades, professions, occu- 
 pations or localities, have been explained, in a number of cases where they were 
 employed in written instruments, by parol evidence of usage.' 
 
 § 182. Classification of the Cases. — The cases in which evidence of this 
 character has been admitted are considered at length in the succeeding sections, 
 in which the adjudications have been classed on the basis of the different trades 
 and callings in which the usages were formed and the different instruments in 
 
 1 " The wordB of a written contract are burn, J., in Myers v. Sari, 30 L. J. (Q. B.) 9; 
 
 to be understood in tliat sense wbicli tlie 7 Jur. (N. a.) 97. 
 
 phrase has acquired in the trade with re-, ' Shore v. Wilson, 9 01. & Fin. 366; Attor- 
 
 gard to which it is used. It is the prima ney-General v. Drummond, 1 Dr. & War. 
 
 facie presumption that it was the intention 363; Drummond v. Attorney- General, 2 H. 
 
 of the parties to use it in that sense ; and, L. Gas. 837. 
 
 having expressed themselves in a, written » Lewis v. Marshall, 1 Man. & G. 729. 
 
 contract making use of the phrase, it is < Myers v. Sari, 30 L. J. (Q. B.) 9; 7 Jur. 
 
 prima facie, as a matter of construction of (N. s.) 97 ; Brown v. Byrne, 3 El. & Bl. 703. 
 
 the contract, to be taken that they used the ' Smith v. Wilson, on«e, p. 385. 
 
 phrase in the particular limited sense which « Grant v. Maddox, 16 Mee. & W. 787. 
 
 it has acquired in the trade. That peculiar » Cochran i>. Retberg, 3 Bsp. Ml. 
 
 and limited sense, if such an one had been « Hill v. Evans, 31 L. J. (Oh.) 467; Grant 
 
 acquired, must be shown by parol evidence ; v. Maddox, 16 Mee. & W. 737 ; Barlow ti. Lam- 
 
 and this having been shown, then the pre- bert, 28 Ala. 704; Smith v. Clayton, 29 N. J. 
 
 sumptionis that that was the sense in which L. 367; Hartwell v. Gamman, ION. J. Eq. 
 
 the parties making the contract used it. In 128 ; Seymour v. Osborne, 11 Wall. 516 ; Moran 
 
 order to introduce this extrinsic evidence, it ii. Prather, 23 WaU. 492; WiUiams v. Woods, 
 
 is not necessary that the phrase should be 16 Md. 220; Eaton v. Smith, 20 Pick. MO; 
 
 at all, on the face of it, ambiguous." Black- Broadwell v. Broadwell, 6 111. 699. 
 
CLASSIFICATION OP THE CASES. 369 
 
 Adding Unexpressed Terms. 
 
 the interpretation of which they were admitted. This arrangement may appear 
 to merit the criticism which it has received.i It would seem that the mere fact 
 that the usages were in themselves different would be nearly as intelligible a 
 ground of classification as the one adopted. Nevertheless this is the arrange- 
 ment of the digesters, and it must be admitted that no really scientific classifi- 
 cation is possible. We must ask the reader to bear in mind that the legal 
 principles which are to determine the admissibility 6r inadmissibility of usages 
 and customs by courts of law are the same in all relations ; that there can be no 
 difference, because in one case the usage is admitted to explain the meaning of a 
 technical word in a manufacturer's receipt, or in another to expound the doubt- 
 ful meaning of a term in the contract of a carrier or an insurer. Keeping this 
 in view, the classification which we have adoirtjd is believed to be the best, 
 because it renders the access to particular precedents more easy and ready in 
 future cases. 
 
 § 183. Usage admissible to add unexpressed Terms to written Contracts. — 
 At first admissible only to explain the meaning of technichal terms in written 
 contracts, the office of a usage soon became more extended. It was not long 
 before it was recognized by the courts that it was as necessary to allow usage 
 to explain what was purposely not said as whati was carelessly ill-expressed. 
 Experience taught that in the hurry and bustle of bargain and trade, and in all 
 the transactions of busy men, only a portion of the real bargain was actually 
 written out. In all contracts as to the subject-matter of which known usages 
 prevail, parties are found to proceed with the tacit assumption of these usages. 
 They commonly reduce into writing the special particulars of their agreement, 
 but omit to specify those known usages which are included, however, as of 
 course by mutual understanding.^ If, as was remarked by Maulb, J., in the 
 course of the argument of one case,' a party was to contract with another to 
 convey a lion, there could be no doubt that evidence would be admissible to 
 show that it was customary to put animals of that description into cages. And 
 so usage was allowed not only to explain, but to add tacitly implied incidents to 
 the contract in addition to those which were actually expressed.* It will appear, 
 from a comparison of the cases, that it is not an easy thing to distinguish those 
 cases which have been decided on the ground that the usage explained the 
 writing, from those which have been looked upon as adding terms or incidents 
 to It. Where only half a thing is expressed, there is real ambiguity in the 
 writing, which can only be fully explained by the addition of a term or incident.. 
 
 1 Browne on Usages & Customs, 74. ' Eobertson v. Jackson, 2 0. B. 412. 
 
 2 Coleridge, J., in Brown v. Byrne, 3 El. * Sotillchos v. Kemp, 3 Exoh. 105; ICemp- 
 &B1. 703. Therefore, where it is said, as in son ■<;. Boyle, 3 Hurl. & Colt. 763; Vliet v.. 
 Dickinson ». Gay, 7 Allen, 29 (and see Weth- Campbell, 13 Wis. 198; Lord Ablnger v. Ash- 
 erill 11. Neilson, 20 Pa. St. 448), " There is no ton, L. R. 17 Bq. 358 ; Ex parte Conway, 4 Ark- 
 necessity lor such usages, because if the par- 302, 367 ; Buokner v. Eeal Estate Bank, 5 Ark.. 
 ties agree that there shall be a warranty 636; Worthington ». Curd, 15 Ark. 491 ; Jones 
 where the law implies none, they can insert v. Bradner, 10 Barb. 193 ; Lawrence v. Galla- 
 the warranty in the bill ol sale; or, il the gher, 10 Jones & Sp. 309; Wilson v. Bandall,. 
 manufacturer sells without warranty, he 67N.Y. 338; Dent ». North American Steam- 
 can so express it," one ol the main grounds ship Co., 49 N. Y. 390; Robinson v. Fiske, 25 
 for admitting such evidence is entirely lost Me. 401. 
 
 eight of. 
 
370 THEIR ADMISSIBILITY TO EXPLAIN CONTEACTS. 
 
 Annexing Incidents to Contracts. 
 
 Wliere there is palpable ambiguity, the effect is the same. The addition of a 
 term, or the explanation of the terms which are there written, gives a meaning 
 to the writing which It did not possess without this expert evidence.^ And, as 
 will be seen in another chapter,'^ the usage or custom must not be of a character 
 which is repugnant to, or inconsistent with the written contract. But that it 
 merely varies the written contract is not enough to make it inadmissible, for It 
 is Impossible to add any material incident to the written terms of a contract 
 without altering its effect more or less.' 
 
 § 184. Incidents annexed to Contracts grenerally. — It is remarked by Mr. 
 Bkowne * that the fact that usage is permitted to annex incidents to written 
 contracts is another proof of Its relationship to the common law. Law annexes 
 various incidents to contracts, and these differ from those annexed by usage 
 only in the circumstance that they claim their own recognition without proof, 
 while the others have to be evidenced. It may be useful shortly to allude to 
 some of these, although many may be in the Immediate memory of the reader. 
 In contracts for the sale of estates, whether freehold or leasehold, the law, in 
 the absence of express stipulation, it will be remembered, implies an undertaking 
 on the part of the vendor that he will make out a good title,' and an undertaking 
 on the part of the vendee that if the title prove defective, the damages to which 
 he shall be entitled shall be limited to the expenses actually incurred in the 
 investigation, and shall only be nominal for the loss of the bargain.' So, on a 
 demise of real property the law annexes a condition that the lessor has a good 
 title to the premises, and that the lessee shall not be evicted during the term; ' 
 but it does not imply from the nature of the contract a warranty that the prop- 
 erty leased, whether it be a house or land, shall be in a proper state to admit 
 either of habitation or cultivation, or that in other respects it shall be reasonably 
 fit for the purposes for which it is taken.' Again: in relation to marine insur- 
 ance we have an instance of this legal annexation of incidents. One of these Is 
 that in every voyage-policy, whether it be on a ship or on goods, a warranty of 
 seaworthiness at the commencement of the risk is implied. These further con- 
 ditions are also understood as forming a tacit part of the contract : that the voy- 
 age is to be commenced in a reasonable time, and that all material circumstances 
 are to be disclosed. If these conditions are not performed, this omission will 
 render the policy void, whether the omission has been due to fraudulent motives 
 or not.' We might add other illustrations, but these are sufficient to show the 
 method by which usage annexes incidents to vrritten contracts. 
 
 § 185. Incidents added by Usage cannot establish a Contract. — But, though 
 to a contract an incident varying or explaining it may be added by proof of 
 usage, the incident alone Is not sufficient to establish the contract. Thus, in 
 
 1 Browne on Usages & Customs, 63. « Flureau v. Thornhill, 2 W. Black. 1078; 
 
 2 Poit, Chap. V. Walker v. Moore, 10 Barn. & Cress. 416; Rob- 
 8 Brown v. Byrne, 8 El. & Bl. 703. inson v. Harman, 1 Bxch. 865 ; Worthingtone. 
 < Browne on Usages & Customs, 95. Warrington, 8 C. B. 134. 
 
 ' Sonter v. Drake, 5 Barn. & Adol. 992; » Sutton v. Temple, 12 Mee. & W. U. 
 
 Doe V. Staixon, 1 Mee. & W. 695; Hall v. « md.; Hart u. Windsor, 12 Mee. & W. 68; 
 
 Betty, 4 Man. & G. 410; George v. Pritohard, Smith v. Marrable, 11 Mee. & W. 5. 
 
 Kyan & M. 417. . (jibson t>. Smith, 4 H. L. Oas. 898. 
 
USAGE ALONE CANNOT MAKE A CONTKACT. 371 
 
 Nor Supply Disputed Tenns. 
 
 an action of ejectment against a tenant, the demise being laid on the 1st of Jan- 
 uary, 1849, the plaintiff claimed that the defendant entered into possession of 
 the premises in 1848, as his tenant, and produced evidence to establish this. 
 The defendant, in order to show that the tenancy had expired at the date of the 
 alleged demise, offered to prove that it was the general usage in the place for all 
 leases to expire on the next day before the 1st of each January. This evidence 
 was admitted, but erroneously, as was held on appeal to the Supreme Court. 
 "The custom," said Nash, J., "is admissible in proof, not for the purpose of 
 establishing a contract, but to add an incident not expressly embraced in it, and 
 in reference to which the parties are presumed to have contracted. Thus, If the 
 lease in this case was made on the 1st of February, 1849, or from the 1st of 
 January, 1849, for and during that year, the plaintiff would be permitted to 
 show that by the usage and custom of Greenville all leases made within the 
 town, and so terminating, expired on the day preceding the 1st of January. 
 In that case the custom would transport into the contract an incident upon 
 which it was silent, but with respect to which the parties must be presumed to 
 have contracted. But before the incident can be so engrafted, the contract as 
 made must be proved ; the incident cannot be used to establish the contract. 
 The expiration of a lease is as much a matter of contract as its commencement. 
 * * * The contract of lease in this case may have been for one month, two 
 months, or six months, and whether the custom was applicable or not would 
 depend upon the term agreed for." ' 
 And see particularly on this point the late case of Tilley v. City of Chicago.^ 
 
 § 186. That Parties differed as to the Usage does not destroy the Con- 
 tract. — The fact that parties to a contract had a diffei-ent understanding 
 concerning the usage governing it, does not bring the case within the cardinal 
 rule in the law of contracts that where the minds of the parties do not meet as 
 to its subject-matter or Its essential terms there is no binding contract, for the 
 difference is only as to its legal effect.' 
 
 § 187. XTsa^e not admissible to supply disputed Terms. — Where a contract 
 is by word of mouth, and the controversy is not as to the meaning of the terms 
 used by the parties, but as to what precise terms had been in fact used, evidence 
 of custom Is not admissible. Thus, in an action by a marble-worker to recover 
 the value of a marble monument sold by the plaintiff to the defendant, to be 
 erected on the grave of her husband, it appeared that the monument, having been 
 finished, was taken away by the defendant's son, and subsequently the plaintiff 
 went to the defendant's residence to superintend its erection. It was broken in 
 the process of erection, and the question on the trial was whether, by the terms 
 of the contract, the plaintiff was merely to make and deliver a monument at his 
 shop, and to assist at its subsequent erection, or whether he was to erect it 
 before it was to be considered as delivered. On this the evidence was conflict- 
 ing. It was held that evidence was not admissible to show what was meant in 
 the trade of a marble-worker by a contract to erect a monument.* 
 
 » Moore V. Eaaon, 11 Ired. L. 688. » Scudder v. Bradbury. 106 Mass. 422. 
 
 » Ante, p. 3S6. * Sanford ». RawUngs, 43 lU. 92. 
 
372 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Contracts of Sale. 
 
 §188. Contracts ol Sale — TTsagre as to Quality and Description of 
 Goods. — In the various trades and manufactures, contracts entered Into for the 
 purchase or sale of goods and merchandise are best interpreted by the usages of 
 those trades and manufactures. The meaning of technical terms, or of words 
 not in themselves technical except when used in a particular trade, has been 
 explained by evidence of usage in many cases, sometimes where the question 
 was one of quality or description, sometimes where it was one of quantity or 
 price, or the like. Thus, in Swett v. Shumway,^ the plaintiffs contracted with the 
 defendants for the manufacture of certain goods described in the contract as 
 " all the horn chains they manufacture." The defendants contended that these 
 words implied a warranty that the chains should be made wholly of horn, and 
 that there was a failure to comply therewith if part of the links were made of 
 hoof; but the plaintiffs were allowed to show that chains of the latter kind were 
 known as horn chains in the market. This ruling, on appeal, was held to be 
 correct. "There are many articles," said Colt, J., "which are named from 
 one of several different materials of which they are made. A contract, for 
 example, to furnish gold watches or mahogany furniture would not be construed 
 to require the whole watch to be of gold or the whole piece of furniture to be 
 mahogany. In the admission of the evidence offered by the plaintiffs on this 
 point, the true rule was applied by the court." Similarly, in BoUnson v. United 
 States,'' a merchant agreed to deliver to the United States commissary depart- 
 ment " 1,000,000 bushels of first quality clear barley." There being no specifica- 
 tion in the agreement as to the manner in which the barley was to be delivered, 
 it was held in the Supreme Court of the United States that evidence was prop- 
 erly admitted to show that it was the custom of the trade to deliver grain in 
 casks. Again : in a New Jersey case, a party agreed to deliver to another a num- 
 ber of trees, " not to be less than one foot high," and it was held competent for 
 the defendant to show that by the universal custom and usage of all dealers in 
 such articles the length was measured only to the top of the ripe wood, rejecting 
 the green, immature top.' 
 
 In Baker v. Squier,^ an action was brought for a refusal to receive goods sold 
 to the defendant by a bought-and-sold note, in which the goods were described 
 as two hundred and twenty-five tons "kurty, 48 to 50 per cent carbonated 
 soda-ash." The soda-ash had been tendered, accompanied with a certificate 
 of quality from H. & A., a firm of chemists. The defendants refused to accept 
 it, on the ground that it was not of the quality called for. On the trial, it 
 was held competent to show that it was the universal custom of the trade, in 
 contracts for soda^ash, to determine the quality by tests by certain recognized 
 chemists, whose certificate was attached to the invoice and was received by 
 dealers as evidence of the quality, and that the firm of H. & A. were among 
 those recognized chemists, and their certificate was recognized by the trade as a 
 compliance with such a contract. "We think," said the Supreme Court, on 
 appeal, "the custom was properly admitted in evidence. A person engaged in 
 a particular trade is presumed to be acquainted with the usages of that trade 
 and to contract with reference to them, and the usage of the trade in which the 
 contract is made may be shown to explain the meaning of a particular contract, 
 
 ; Ifwau'aeT ■ ' ^'''""' «• MoKelway, 22 N. J. 1. 168. 
 
 la w ail. dB». 4 I Hun, 448 ; 8 N. Y. S. O (J. & S.) «5. 
 
CONTRACTS OF SALE. 373 
 
 Usage as to Quality and Description. 
 
 but not to contradict its plain terms. The figures 48 to 50 per cent convey 
 no meaning to a person Ignorant of the subject-matter of the contract and 
 of the usages of the trade in which it was made, and the evidence of the cus- 
 tom was to explain the meaning of those terms or figures when used in such 
 a contract, and did not tend to vary the import of the contract so far as its 
 terms are expressed." And where a person, by written contract, conveyed to 
 another " a certain milk-route, * * * and the right and good-will of supply- 
 ing twenty-six full eight-quart cans of custom," it was held that the latter might 
 show that these words, In the milk trade, mean, when applied to sales of the 
 trade, the right of supplying milk to the customers furnished and pointed out by 
 the vendor from those accustomed to buy milk of him.' So, where one con- 
 tracted to sell " 1,170 bales of gambler," and the purchaser refused to receive 
 the bales, evidence was held admissible to show that by the usage of the trade 
 a bale of gambler was understood to mean a package of a particular descrip- 
 tion, and that the contract was not satisfied by a tender of packages of a 
 totally different size and description." And on a sale of " 18 pockets Kent hops, 
 at 100s," evidence may be given that by the usage of the hop trade a contract 
 80 worded means 100s a hundred-weight.' 
 
 A party made a contract in the following form: " Glasgow, 28th March, 1850. 
 We hold one hundred tons of No. — pig-iron, deliverable free on board to the 
 bearer of this document only on presentation." In construing this contract, it 
 was held by the House of Lords that it was proper to show that by mercantile 
 usage in Glasgow, and the mode in which persons dealing in that commodity 
 would construe the document, "pig-iron " meant " Clyde and Dundyvan " iron,* 
 
 The English Court of Appeal, as appears from a late case not yet reported,' 
 were recently somewhat puzzled to decide whether evidence of usage could be 
 admitted to show that, in the dry-goods trade at least, "white" sometimes 
 meant "black." The question arose in an action for the infringement of a 
 trade-mark. The plaintiffs had registered a trade-mark for worsted stuffs. It 
 was advertised in the Trade-Marks Journal of the 13th of January, 1877, and 
 was thus described : "A white selvage on each side of the piece, having a red 
 and white mottled thread interwoven the full length of the selvage, between the 
 •edge of the piece and the edge of the selvage." No representation of the trade- 
 mark was printed in the journal, as is usually- the case, but the following note 
 was added to the description: "A specimen of this mark is now on view at 
 the patent-ofBce musuem, South Kensington." The specimen deposited at the 
 museum was an undyed specimen of the goods to which the plaintiffs applied 
 the mark. The goods were mohair goods, and were known in the market by the 
 name of " Brilliantine." When sold, they were dyed black, but the deposited 
 specimen was undyed. The woof of the whole piece, as undyed, was white 
 mohair. The warp of the body of the piece was black mohair. The warp of 
 the selvage was composed entirely of white cotton, with this exception : that 
 
 1 Page V. Cole, 120 Mass. 37. evidence is admissible as to the sense in 
 
 « GoiTissen i>. Pemn. 2 C. B. (s. 8.) 681. which the trade understood the word 
 
 » Splcer V. Cooper, 1 Q. B. 124. "In this ' pocket,' so used." Denman, 0. J., in Spioer 
 
 case the contract was either simply, ' at «. Cooper, supra. 
 
 1008,' in which case evidence was admis- < Mackenzie t>. Dunlop, 8 Maoq. H. L. 
 
 Bible to explain in what sense such words Oas. 26. / 
 
 are used in the trade, or it is a perfect con- ' Mitchell v. Henry, noted in 21 Sol. J. 689. 
 
 tract, ' at 100s per pocket,' in which case 
 
374 THEIR ADMISSIBILITy TO EXPLAIN CONTRACTS. 
 
 Contracts of Sale. 
 
 between the inside and oatside edges of the selvage, and at a distance from the 
 inside edge equal to ahout one-third of the whole width of the selvage, there 
 ran the "red and white mottled thread" mentioned in the description in the 
 journal. The appearance of the undyed fabric was light gray, with a white 
 border, a red and white line running through the border. When dyed, the whole 
 fabric (including the selvage) appeared to be black, but the selvage was not of 
 so deep a black as the rest of the piece. The red and white thread became, 
 when dyed, of a very dingy hue, but was perfectly distinguishable. The defend- 
 ants manufactured goods of a similar description, using, however, in their 
 selvage a mottled thread of three colors — red, yellow, and white — instead of 
 two, and placing this thread along the inside edge of the selvage. When 
 undyed, their goods were of a darker gray than those of the plaintiffs, and the 
 selvage was rather gray than white. When dyed black, there was scarcely any 
 difference between the appearance of the plaintiffs' and the defendants' goods, 
 except in the position of the mottled thread in the selvage, though the defend- 
 ants' selvage was of a somewhat lighter hue than the plaintiffs'. The plaintiffs 
 alleged that the defendants' selvage was an imitation of theirs, and by their writ 
 they claimed an injunction to restrain the defendants from infringing it. The 
 plaintiffs moved for an interim injunction until the trial of the action, and 
 JBSSEL, M. R., refused the application, holding that there had been no infringe- 
 ment. He said that the plaintiffs had registered a white selvage as their trade- 
 mark, while they were actually using a black selvage. This was fatal to their 
 claim. Moreover, the defendants were using a black selvage, and that could 
 not be an imitation of what the plaintiffs had registered, which was a white 
 selvage. There was also the difference between the defendants' mottled thread 
 and that of the plaintiffs'. Evidence had been adduced to prove that the sel- 
 vages actually used by the plaintiffs and the defendants, though nearly black in 
 appearance, were known in the trade as white selvages. But his lordship 
 refused to look at this evidence, and said that no amount of evidence would 
 convince him that black was white. He accordingly dismissed the motion with 
 costs. The Court of Appeal (Jambs, Cotton, and Thbsigbr, I,.JJ.) were of 
 opinion that this was not the proper mode of disposing of the case. They held 
 that the plaintiffs ought to be allowed to show by the evidence of experts that 
 the term "white selvage," as understood in the trade, would include the selvage 
 actually used by the plaintiffs. 
 
 Evidence ©f usage among dealers has been admitted to show the meaning of 
 " season," in a contract to purchase and deliver corn " on board our boats the 
 coming season ; " i to show the meaning of " product," in an instrument which 
 recited: "Received from teams in our pork-house. No. 114 West Harrison 
 Street, 280 hogs, weighing 45,545 pounds, the product of which we promise to 
 deliver to the order of Messrs. Stevens & Bro., indorsed hereon. G. & J. Stew- 
 art; " » to show the meaning of " good custom cowhide boots," in an agreement 
 to pay for a number of those articles at a certain price ; ' to show what is called 
 for on a contract to deliver " winter-strained lamp-oil, "• and on a contract to 
 deliver " good merchantable hay ; " » to explain the meaning of " prime logs ; "^ 
 
 ' Myers v. Walker, 24 111. 133. <. Fitch v. Carpenter, 43 Barb. 40. 
 
 .63. 
 
 ^ewart v. Smith 29 111. 397. « Spring V. Cockburn, 19 Upper Canada 0. 
 
 " Waite V. Fairbanks, Brayt. 77. p. -" 
 
 * Hart V. Ilammetl, 18 \l. 127. 
 
CONTRACTS OF SALE. 375 
 
 Usage as to Quantity and Price. 
 
 to show that the words " with all faults," in a contract for the sale of hides, 
 mean all that are not inconsistent with the Identity of the goods ; ' that, under a 
 contract to build a " drawbridge," it is the common understanding among per- 
 sons,skilled in bridge-building that the bridge should be so constructed as to be 
 easily turned in two or three minutes by one man; * that " cider," in a contract 
 of sale, meant the juice of the apples as soon as pressed; ' that " gas-flxtures," 
 in a contract, did not include meters ; * that a certain glass is known in the mar- 
 ket as "German cylinder glass;" ^ that "300 bales S. F. drills, 7J, 100 cases 
 blue do., 8|," mean the first quantities at seven and a quarter, and eight and 
 three-quarter cents a yard; * that in a contract " to saw lumber, and to retain 
 any spoiled," " spoiled lumber " is such as is rendered unmarketable ; ' that 
 "mess-pork of Scott & Co." means mess-pork manufactured by Scott & Co.; ^ 
 - that oU is " wet " if it contains any water, however little.' And the following 
 terms in written contracts of sale have been explained by parol evidence of 
 usage: " Pitch-pine timber of average quality ;" '" "copper-fastened vessel;"" 
 "No. llog;"" "good team," in a contract for a mower which should be 
 " capable, with one man and a good team, of cutting and raking off from twelve 
 to twenty acres of grain a day; " " " best E x. F. F. madder ; " " " 150 tons soft 
 English lead, of W. P. & W. brand ; " '* " fresh seed," in a contract for onion seed.'* 
 
 §189. Same — Usage as to Quantity and Price. — So as to quantity and 
 price. In Goodrich v. Stevens,'" the defendant and one Smith entered into a 
 written contract in these words: "Bought of H. P. Smith Ms crop of Hax, 
 200,000 pounds, at 25 cents per pound, dressing to be equal to best of last 
 year's work." An action being brought for the defendant's refusal to receive 
 and pay for two hundred thousand pounds of flax tendered by Smith, the 
 plaintiff's assignor, it appeared that the flax which Smith had tendered was 
 not all raised by him, — about one-half had been bought of other persons, — but 
 he held the whole two hundred thousand pounds at the time of making the con- 
 tract. The defendant justified his refusal on the ground that the contract 
 called for two hundred thousand pounds of fiax raised by Smith himself. The 
 plaintiff thereupon offered evidence to show that by the usage in this trade the 
 words " my crop " and " his crop " are used to signify the amount of the cur- 
 rent year's production which the party contracting to deliver has on hand at the 
 time of making the contract, by purchase as well as by production ; but the 
 court excluded It, and the plaintiff was nonsuited. On appeal, the ruling was 
 reversed, the Supreme Court holding that the evidence should have been received. 
 In Miller v. Stevens,^' the plaintiff contracted to sell to the defendants " 1,000 
 barrels of petroleum oil," and it was held competent to show that the word 
 
 1 Whitney ». Boardman, 118 Mass. 243. " Shepherd v. Kain, 5 Barn. & Adol. 200; 
 
 » Eailroad Co. «. Smith, 21 Wall. 262. Schneider v. Heath, 3 Camp. 506. 
 Studdy V. Sanders, 5 Barn. & Cress. 628. " Busch v. Pollock, 41 Mich. 64. And see 
 
 * Downs II. Sprague, 1 Abb. App. Dec. 550. Hopkins v. Sanford, 41 Mich. 243. 
 ' Mixer v. Coburn, 11 Meto. 559. " Sanson v. Madison, 15 Wis. 144. 
 
 « Salmon Falls Man. Co. v. Goddard, U " Dana v. Redler. 1 E. D. Smith, 463. 
 How. 446. " Pollen v. Le Roy, 10 Bosw. 38 ; 30 N. V. 
 
 ' Harris v. Eathbun, 2 Keyes, 312. 549. 
 
 « Powell V. Horton, 2 Bing. N. C. 668. " Ferris v. Comstock, 33 Conn. 513. 
 
 » Warde v. Stuart, 1 C. B. (N. s.) 88. " B Lans. 230. 
 
 « Jones V. Clarke, 2 Hurl. & N. 725. >» 100 Mass. 518. 
 
376 THEIR ADMISSIBILITY TO EXPLAIN C0NTKACT8. 
 
 Contracts of Sale. 
 
 "barrel " meant a vessel of a certain capacity, and not the statute measure of 
 capacity. 
 
 The principal case of Smith v. Wilson^ has been followed in Missouri. In 
 Soulier v. Kellerman,' decided in 1853, the plaintiff, alleging that he bought of 
 the defendant 4,000 shingles, and that he received eight bundles, which contained 
 only 2,500, and that he had paid for 4,000, brought suit to recover the value of 
 the 1,500 not delivered. The defence was that by the custom of the lumber 
 trade two packs of a certain size are regarded as 1,000 shingles, and are always 
 bought and sold as such without any count of the number, and that the eight 
 bundles delivered to plaintiff were, according to the custom, properly reckoned 
 as 4,000 shingles. The defendant asked the court to declare the law to be: " 1. 
 That if the shingles sold to the plaintiff were in ordinary-sized packs, and that 
 the price paid was a reasonable one for such kinds of packs, and that such ' 
 packs are, by common custom, sold two for a thousand, then the plaintiff is not 
 entitled to recover. 2. If the common custom of the lumber trade is to sell two 
 bunches of shingles as a thousand, without regard to actual count, then the 
 plaintiff must be presumed to have had notice of such general custom, and to 
 have purchased accordingly." This the court refused, but declared that "if the 
 contract was at so much per thousand, and not so much per bundle, and no 
 express agreement was entered into that two bundles should represent a thou- 
 sand, then the defendant must deliver the four thousand, or else account to the 
 plaintiff for their value." On appeal to the Supreme Court, this ruling was de- 
 clared to be erroneous and the judgment reversed. " The usage of a particular 
 trade," said Gamble, J., who delivered the opinion of the court, "is evidence 
 from which the intention and agreement of the parties may be implied; and 
 although it cannot control an express contract, made in such terms as to be 
 entirely incosinstent with it, yet in express contracts the terms employed may 
 have their true meaning and force best understood by reference to such usage. 
 Evidence of such u sage is admitted, not to vary the terms of an express con- 
 tract or to change the obligation, but to determine the meaning and obligation 
 of the contract as made. The usage must appear to be so general and well 
 established that knowledge oi it may be presumed to exist among those dealing 
 in the business to which it fipplies ; so that the contract of the parties may be 
 taken to have been made with reference to it. In this country, many articles 
 which are In terms sold by the bushel (a dry measure containing 'eight gallons) 
 are in fact sold by weight, the bushel being understood to mean a certain num- 
 ber of pounds, and the number of pounds differing in different articles — as, 
 salt, wheat, etc. When such custom becomes general and well established, so 
 as to be known to the community, it is obvious that a contract for a given num- 
 ber of bushels must mean the bushel as ascertained by weight, whether in fact 
 the number of pounds of the article sold would measure more or less than the 
 real bushel." The judge then cites Smith v. Wilson, and proceeds: "In the 
 present case, there was evidence that a general custom prevailed in the lumber 
 trade of estimating two packs of shingles of certain dimensions as a thousand 
 shingles, without reference to the number of pieces in the pack. If such was the 
 usage of the trade, so general and well established that those buying and selling 
 might be presumed to deal in reference to it, there does not appear to have been 
 
 1 Ante, p. 335, ■ a 18 Mo. 505. 
 
CONTKACTS OF SALE. 377 
 
 Usage as to Quantity and Price. 
 
 any such contract shown in this case as would prevent the usage from applying. 
 The law commissioner seems to have thought that the defendant could not 
 escape from liability, if the contract was at so much per thousand, unless there 
 was an express agreement that two bundles should represent a thousanl. This 
 was an incorrect statement of the law in a case where evidence was given of a 
 general usage that a thousand shingles meant two packs of certain dimensions. 
 "Whether there was as full evidence of the usage given as ought to have been 
 given, is not a question upon which we pass ; but there was evidence of the usage^ 
 upon which the party was entitled to have the law differently declared if the 
 evidence proved the usage as general, well established, and known, so that con" 
 tracts might be presumed to be made with reference to it. It was not necessary 
 that the defendant should show an express agreement that two bundles should 
 represent a thousand." Where a contract called for " sixty thousand cubic feet 
 square white-oak lumber," a custom in the market to reject fractions of a foot 
 in its measurement was held admissible.i Where logs are to be sold at a 
 certain price for so much lumber as they are " estimated" to make, the mode 
 of estimating is to be shown by custom.^ Again: A. agreed, in writing, to 
 deliver to B. five hundred tons of copper ore, to be paid for at certain specified 
 prices per ton, according to the quality of the ore, to be ascertained by an assay 
 thereof, " the moisture to be deducted, as usual, from the weight of the ore." 
 B. claimed that under the contract A. was bound to deliver a quantity of ore 
 weighing five hundred tons after deducting for the moisture, while A. insisted 
 that he was only bound to deliver five hundred tons of ore, gross weight, without 
 any deduction for the moisture, and that the proviso in regard to such deduction 
 related only to the mode of ascertaining the weight of ore to be paid for. It was 
 held that either party might show a custom in the sale of copper ore corre- 
 sponding with their respective claims as to the construction of the contract.' 
 
 It is competent to show by commercial usage that the words " net balance " 
 mean the balance of the proceeds after deducting the expenses incident to the 
 sale;* that the words "terms cash," in a bill of goods, imply that a discount 
 would be made if it was paid in six months ; ^ that the words " consigned 6 mo." 
 mean that the goods were consigned if returned in six months, but that if not so 
 returned they were regarded as sold ; " that " about " so many tons of hemp has 
 a definite meaning when used in a delivery order ; ' that a contract for the sale 
 of gold " short " means a sale of that which the seller does not at the time have, 
 but which he expects to be able to purchase at a lower price ; » that on a contract 
 for lumber, in the phrase "one thousand feet in each raft," the words "one 
 thousand feet" mean linear measure ;' that the word "honored" means paid, 
 and not accepted, in the phrase in a merchant's letter, "when the bills are duly 
 honored ;"!'' that upon a note payable in cotton-yarn, at "wholesale factory 
 prices," a certain discount is allowed by manufacturers and dealers." So, parol 
 
 1 Merrick v. MoNally, 26 Mich. 374. And ' Moore v. Campbell, 10 Exoh. 333. 
 see McGraw v. Sturgeon, 29 Micli. 426. * Appleman v. Fisher, 34 Md. 540. 
 
 2 Heald V. Cooper, S Me. 32. » Brown v. Brooks, 25 Pa. St. 210. 
 ! HumphreysvUle Copper Co. ». Vermont » Lucas v. Groning, 7 Taun. 164. 
 
 Copper-Mining Co., 33 Vt. 92. " Avery v. Stewart, 2 Conn. 69. " These 
 
 « Evans ». Wain, 71 Pa. St. 69. words, I confess," said Gould, J., m this 
 
 * George r. Joy, 19 N.H. 544. case, "would seem to me prima facte to 
 
 t j^^ Import the actual wholesale market prices 
 
a78 
 
 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Miscellaneous Cases. 
 
 evidence of usage has been admitted to show the meaning of "your wool," in a 
 written offer to buy "your wool, 16s per stone, deliverable at Liverpool;" ' to 
 show the meaning of the words " ex boats Spencer and Gait," in a contract for 
 " two boats Western mixed com in B.'s stores, Clinton Wharf, ex boats Spencer 
 and Gait;" ^ to show the meaning of " season," in a contract for the delivery of 
 grain "the coming season;"' of "month;"* of "for shipment In June or 
 July;"* of "to be paid for in from six to eight weeks;"* of "on freight;"' of 
 "bale;"* of "six per cent off for cash." ' 
 
 So, a usage of selling certain goods at a discount may be shown to explain an 
 item in an account.^" 
 
 Abbreviations and ambiguous expressions as to price in a written contract are 
 properly explained by proof as to the customary meaning of such characters or 
 contractions. Thus, in one case, " 40 of 3 — 58s ;" " in another, " five per cent 
 advance;"" in another, "best madder, 12J;"" in another, "at the rate o' 
 lOO + doUs. per ton;"" in another, "cost;"" in another, "cost price;"" in 
 another, " cas," " were interpreted by evidence of usage. 
 
 § 190. Same — Other Oases. — In many other cases of mercantile contracts 
 of sale, evidence of custom has been admitted in accordance vyith the rules 
 laid down by Wilde, C. J., in Spartali v. Benecke,^' viz. : that it is com- 
 petent (1) to prove that the words in which the contract is expressed, in the 
 particular trade to which the contract refers, are used in a peculiar sense, and 
 different from the sense which they ordinarily import; (2) for the purpose of 
 annexing incidents to the contract in matters upon which the contract is silent; 
 (3) both these rules being subject to the limitation or qualiflcation that the 
 
 at the iactory. But if this or any other sim- 
 ilar term is by the common consent and 
 general usage of all dealers in a particular 
 branch of business used in a different sense, 
 and so understood by their customers, there 
 can be no reasonable objection to a party's 
 proving it by parol. It is like the common 
 case ol any term of measure or quantity 
 used in particular branches of business in a 
 sense different from the common one, and, 
 like any other latent ambiguity, may be 
 explained by parol evidence." 
 
 > Macdonald v. Longbottom, 1 El. & Bl. 975. 
 
 s Hay i;. Leigh, iS Barb. 393. And see 
 Rhoades v. Castner, 12 Allen, 130. 
 
 ' Myers v. Walker, 24 111. 133. 
 
 < Simpson ». Margiston, H Q. B. 32. 
 
 6 Alexander v. Vanderzce, L. B. 7 C. P. 530. 
 
 « Ashforth v. Bedford, L. R. 9 C. P. 20. 
 
 ' Cutwater v. Nelson, 20 Barb. 29. 
 
 » Taylor v. Briggs, 2 Car. & P. 525. 
 
 9 Linsley v. Lovely, 26 Vt. 123. 
 
 w Sager V. Tupper, 38 Mich. 258. The 
 plaintiff in this case sought to recover the 
 sum of 1174.35 as the amount he had paid for 
 a belt he purchased for defendants. A bill 
 for this belting had been made out, in which 
 the price appeared to be $174.35. There also 
 
 appeared upon this bill the words and fig- 
 ures, "less expense account, ^7.46;" and 
 this amount was claimed to be a discount 
 from the regular price-list. One of the wit- 
 nesses called by defendants was asked, after 
 testifying that he had purchased leather 
 belting, the custom relative to selling belting 
 at a discount from the price-list. This was 
 objected to as irrelevant and immaterial, 
 but the court permitted the question, and 
 its ruling was approved on appeal. 
 
 " Cooper V. Smith, 15 East, 103. 
 
 « Cole V. Wendel, 8 Johns. 116. 
 
 15 Dana v. Fiedler, 12 N. Y. 41. 
 
 " Taylor v. Beavers, 4 E. D. Smith, 215. 
 
 15 Gray v. Harper, 1 Story, 574. And see 
 Buck tJ. Burk, 18 JJ. Y. 337. 
 
 '« Herst V. Oomeau, 1 Sweeny, 690. The 
 term "cost" is a relative one, and differs in 
 its meaning according to the circumstances 
 under which it is used. Thus, the cost price 
 to an importer is one thing; to a jobber or 
 middle-man, another; to a retailer, another; 
 and to a purchaser from a retailer, still 
 another. 
 
 " Meaning " cashier." Farmers and Me- 
 chanics' Bank v. Day, IS Vt. 36. 
 
 le 10 C. B. 213. 
 
CONTKACTS OF SALE. 37 d 
 
 Miscellaneous Usages. 
 
 peculiar sense or meaning which it is proposed by the evidence to attach to the 
 words of the contract must not vary or contradict, either expressly or by impli- 
 cation, the terms of the written instrument.^ 
 
 In Spartali v. BenecJee,' decided in the English Court of Common Pleas in 
 1860, a contract for the sale of thirty bales of goats' wool contained the follow- 
 ing stipulation: " Customary allowance for tare and draft, and to be paid for in 
 cash in one month,' less five per cent discount; " and evidence was held inadmis- 
 sible to show that, by the usage of that trade, sellers selling under such con- 
 tracts were not bound to deliver the goods without payment. " The objection 
 to the admissibility of the evidence," said Wilde, C. J., "is that the incident 
 sought to be annexed by such evidence is inconsistent with and contradictory 
 to the express terms of the contract, and by those terms, if not expressly, 
 certainly by implication, excluded. The contract states, in terms, the precise 
 time when the price is to be paid, — 'in a month,' — and to require payment 
 before that time is obviously inconsistent vrith that stipulation." But this case 
 was subsequently criticised in the Court of Exchequer Chamber.' In Liicas v. 
 Bristow,* decided in the English Court of Common Pleas in 1858, the plaintiffs 
 sold to the defendants " fifty tons best palm-oil, expected to arrive," " per the 
 Chalco," "at £40 10s per ton," "wet dirty, and inferior oil, if any, at a fair 
 allowance." The oil, on arrival, was found to contain only one-fifth of the best 
 oil, and the defendant refused to accept, whereupon the plaintiff brought his 
 action. It was a question as to what was the intention of the parties, and it 
 was taken that in entering into the contract they had purposely left undefined 
 what was to be the proportion of " wet, dirty, and inferior oil." As Erlb, J., 
 remarked, " They were both engaged in the palm-oil trade, and would be aware 
 that there was great doubt as to the proportions of good and inferior oil in each 
 cargo ; and, therefore, they may well have made the contract on the understand- 
 ing that such portion should not be specified." There was one established 
 usage in the palm-oil trade as to what proportions would satisfy a contract to 
 deliver "best" palm-oil, and evidence of this usage was admitted to explain 
 what was left undefined in the contract. So, by a contract made at S., be- 
 tween A., who resided in that place, and B., who resided in London, B. sold 
 to A. a cargo of St. Giles Marias wheat, free on board at a French port. The 
 grain was unknown at S., but was shown to be known elsewhere in the trade to 
 contain a mixture of barley. But, although such evidenpe was offered at the 
 trial, the judge refused it unless it could also be shown that the fact was well 
 known at S. This ruling was held to be erroneous.* Coekburn v. Alexander,^ 
 decided in the Common Pleas in 1848, is hardly reconcilable vrtth these rulings 
 and with the current of authority. There, a ship was chartered to bring home 
 a cargo of wool, tallow, bark, and other merchandise. The bark was not to 
 exceed fifty tons, the tallow and hides not to exceed eighty tons, and the ship 
 was to deliver the same on being paid freight as follows : " For wool, one penny, 
 half-penny per pound, and one penny, half-penny, and one eighth of a penny per 
 pound unpressed." For the other three articles separate rates were fixed, and 
 
 1 Wilde, C. J., in Spartali v. Beneoke, 10 ' El. Bl. & El. 907. 
 
 C. B. 212. 5 Bydei- v. Wooley, 10 Week. Eep. 294. 
 
 2 Supra. « 6 0. B. 791. 
 ' See Field o. Lelean, 6 Hurl. & N. 617. 
 
380 THEIE ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Miscellaneous Usages. 
 
 the captain was to sign bills of lading at any rate of freight without prejudice 
 to the charter-party. The ship returned with a full cargo, consisting of a small 
 portion only of wool, and the residue tallow, bark, hides, and other legal mer- 
 chandise. The court held that there was no ambiguity upon the face of the 
 contract, and refused to receive parol evidence for the purpose of showing that, 
 by the custom of the place of loading, the cost of pressing wool was to be borne 
 by the ship-owner. ' In Fawkes v. Lamb,'' a written contract for the sale of goods 
 was silent as to the time for which warehouse-room rent was allowed by the 
 seller to the purchaser, and it was held competent to show this fact by evidence 
 of custom. "The written contract," said Blackburn, J., "is quite silent as 
 to any allowance of warehouse rent, but it was open to either side to show that 
 by general custom a certain allowance for warehouse rent was incorporated in 
 all such contracts. The plaintiff, who was willing to allow one month's rent, 
 called evidence to prove that one month was the amount of the customary 
 allowance. It was open to the defendant to call evidence to prove that the 
 custom was to allow two months, but he did not seek to do this. What he 
 desired to do was to prove that though the written contract was silent as to- 
 any allowance of rent, the parties had, by word of mouth, agreed to make a 
 certain allowance different from the customary allowance. This was an attempt 
 to add to the written contract by parol, and such evidence was not admissible.'' 
 This case is an instructive one, as showing the greater value of evidence of 
 usage over that of any other kind of parol evidence. In Field v. Lelean,' decided 
 in the Exchequer Chamber in 1861, upon the purchase and sale by brokers of 
 shares in a mine, they signed bought-and-sold notes, the foi-mer of which was in 
 these terms : " Bought T. F. -^{^ shares in Wheal Charlotte, at £2 5s per share, 
 £562 10s for payment, half in two months and half in four months." In an 
 action for not accepting the shares, evidence of a usage amongst brokers that 
 on the sales of mining-shares the seller is not bound without contemporaneous 
 payment, was held admissible to show that the defendant was not entitled to 
 have the shares which he had bought from the plaintiff delivered to him before 
 payment, although by the bought-and-sold notes, payment of the price was to be 
 made, half in two and half in four months, and nothing was there said as to the 
 time of delivery. In that case it was argued that the case of Spmtali v. Benecke « 
 was directly in point in favor of the defendant, and Williams, J., in his judg- 
 ment, said: "It may be observed that in that case, although the written instru- 
 
 > Mr. Browne criticises, and, we think, only In trades wliich have a settled course 
 
 justly, the conclusion in this case. Might of business that usages can exist; if, there- 
 
 not such proof, he asks, have been written fore, a transaction, even although in the 
 
 into the written contract without malcing it course of such a trade, deviated from the 
 
 nonsensical, or inconsistent with itself, and ordinary course of that trade, - if it was un- 
 
 18 not that the true test of its admissibility? usual in any of its incidents, - then the pre- 
 
 Does not the knowledge that there was such sumption that the parties had been acting 
 
 a usage in this case, just as In the others. in the light of ordinary custom would not 
 
 introduce an ambiguity from the fact that arise, but a presumption of a contrary nat- 
 
 the written contract does not say enough? ure would be the ruling thought. Browne 
 
 To us there seems nothing in the nature of on Usages & Customs 69 
 
 this contract which should have been re- a 31 L. J. (Exch.) 168; 8 Jur (N s ) 385. 
 
 garded as impliedly excluding such proof. 8 6 Hurl. & N. 617; Godts v. Eose.'lT 0. 1 
 
 we can quite understand that sucli an im- 229. 
 plication may arise. We know that it is « 10 0. B. 212. 
 
CONTRACTS OF SALE. 381 
 
 Miscellaneous Usages. 
 
 ment of sale was, mutatis mutandis, the same substantially as In the present, the 
 usage relied on was different. In the present, it was simply that the delivery is 
 to take place at the appointed time for paymant, and not before. In Spartali 
 V. Benecke, the usage relied upon was that the delivery was to be at the option of 
 the buyer, and that he might require it at any time before the appointed day of 
 payment, but in no case without payment of the price. Therefore, it was a case 
 where I apprehend that Wildk, C. J., in his judgment, treated the usage as vary- 
 ing the time for payment expressed in the statement of the contract, inasmuch 
 as, according to that usage, the delivery intended by the contract might take place 
 so as to give the seller a right to call for payment before the time specified in 
 the written Instrument. But according to the usage proved in the present case 
 no delivery can be required, or is intended to take place, before that time arrived. 
 If Spartali v. Benecke cannot be distinguished in this way, I agree it ought to be 
 overruled." In another case, proof that by a custom of trade, when timber is 
 sold in bond at a sale by auction in Loudon, the buyer contracts to buy at a 
 price Including the duty payable, and he may, by giving notice on the following 
 day so to do, elect to take the timber in bond, and if he does so, he Is then only 
 bound to pay the price less the duty, was admitted under the following circum- 
 stances : On the 10th of February, 1860, the defendant bought timber in bond at 
 a sale by auction, at a price including the duty, the contract to be completed 
 within fourteen days, and the Chancellor of the Exchequer, on the evening of 
 that day, gave notice that a resolution would be moved in Parliament to reduce 
 the duty on timber, and carried out that resolution on the 8th of March. An 
 act of Parliament passed to that effect on the 5th of May, and the reduction of 
 the duty was thereby made to date from the 8th of March. On the 11th of Feb- 
 ruary the defendant gave notice to the seller that he elected to take the timber 
 in bond, and on the 24th of February offered the price, less the then duty, which 
 the seller refused to take, and he also refused to give a delivery order for the 
 timber. He subsequently brought an action for the price of the timber, in which 
 judgment was given for the defendant, on the ground that the usage, which was 
 admitted, added a term to the contract. ' 
 
 In a packer's receipt for goods, containing the phrase, " Received on account 
 of Bowman & Lay, for J. Makinson," the words " for J. Makinson," being am- 
 biguous, were explained at the trial by evidence of the usage of trade. " There 
 Is an ambiguity," said Abinger, C.B., "in the language of the instrument; the 
 defendant is to hold them for one person, and yet on account of another. I 
 think this falls within the general rule that upon a mercantile instrument you 
 may give evidence of usage in explanation of an ambiguous expression." ^ Sp, 
 evidence of custom may be introduced to show that a person whose name 
 appears at the head of an invoice as vendor is not in fact a contracting party.* 
 And, as a case where an Invoice was explained by usage, Schrieber v. Sorsley * 
 deserves attention. The action was for goods sold and delivered, the defence 
 being that the time of credit had not expired. The goods were sold, accom- 
 panied with an invoice which contained the following memorandum as to terms : 
 " Terms, £2 10s per cent monthly." On the trial, the defendant proposed to give 
 evidence to show that under this invoice he was at liberty to draw a bill at the 
 
 ' Clark V. Smallfleld, i L. T. (N. s.) 405. ^ Holding v. Elliott, 6 Hurl. & N. 117. 
 
 ' Bowman v. Horsey, 2 Man. & R. 85. * 11 Jur. (N. s.) 675. 
 
382 THEIR ADMISSIBILITY TO EXPLAIN CONTKACTS. 
 
 Principal and Agent. 
 
 expiration of the first two months, or to leave it an open account and have the 
 option of paying at one-third of £1 10s per cent discount, and at the expiration 
 of the third month for met cash, but the learned judge refused to admit it, and 
 the plaintiff had a verdict. The defendant's counsel afterwards moved for a 
 new trial, on the ground that the evidence was improperly rejected, saying that 
 the defendant was prepared to prove that £-2 10s per cent was the governing 
 discount, and that the buyer paying at the end of two months was entitled to it, 
 and was at liberty to give a bill at three months, or to open an account on a 
 graduated scale of discount — two-thirds at the end of two months, one-third at 
 three. He contended that the custom of the trade proved that such was the 
 meaning of the words. A rule nisi was therefore granted, which was afterwards 
 made absolute, for a new trial, Martin, B., saying: "The invoice is not the 
 contract, but is only evidence of it. It is couched in language which is not 
 intelligible without some explanation, and I think we ought to receive as com- 
 plete an explanation as possible." In an action for the price of tobacco sold, 
 evidence is admissible to show that by the established usage of the tobacco 
 trade all sales are by sample, although the bought-and-sold notes were entirely 
 silent on this point.' 
 
 §191. Principal and Agent — Usage and Custom. — In the leading case of 
 Hwmfrey v. Dale,^ the plaintiff, a broker, brought an action against the defend- 
 ant, a broker, upon a written contract for the sale of oil, in which neither of the 
 principals' names was set forth, and proved a custom in the trade that when a 
 broker purchased without disclosing the name of his principal he was liable to 
 be looked to as principal ; and the Court of Exchequer Chamber, affirming the 
 judgment of the Queen's Bench, held that the evidence was admissible, on the 
 ground that it added to the contract a tacitly implied incident.' In Hutchinson 
 V. Tatham,^ the defendants, acting as agents for a person of the name of Lyons, 
 with his authority chartered a ship for the conveyance of a cargo of currants 
 from the Ionian Islands. The charter-party was expressed to be made and was 
 signed by the defendants as "agents to merchants," the name of the principal 
 not being disclosed. At the trial, evidence was tendered on the part of the plain- 
 tiff, and admitted, of a trade usage that If the principal's name is not disclosed 
 within a reasonable time after the signing of the charter-party, in such case the 
 broker shall be personally liable. The jury found that there was such a custom, 
 and that the name of tiie principal had not been disclosed within a reasonable 
 time. The question for the court was as to the admissibility of the parol 
 evidence; and the judges, while i-estating the doctrine that no such evidence 
 would be admissible to contradict the plain terms of a document, held that It 
 was the law that you might, by evidence of custom, add a term not inconsistent 
 with any term in the contract, and that the evidence which was admitted at the 
 trial was rightly admitted. In Meet v. Murton,^ the defendants were fruit- 
 brokers in London, and were employed by the plaintiffs, who were merchants, 
 also In London, to sell for them. The defendants gave to the plaintiffs the fol- 
 
 • Syers v. Jones, 2 Bxoh. Ill; Boormanv. » El. Bl. &. El. 1004. 
 
 Johnston, 12 Wend. 566; Oneida Uan. Oo. v. « L. E. 8 0. P. 482. 
 
 Lawrence, 4 Cow. 444. » L. B. 7 Q. B. 128, ante, p. fla 
 
 '^n«i!,p.84iJ. 
 
PRINCIPAL AND AGENT. 383 
 
 Miscellaneous Usages. 
 
 lowing contract-note: "We have this day sold for your account to our princi- 
 pal." Then followed a statement of the number of tons of raisins, signed 
 Murton & Webb, brokers, 25 Mincing Lane. The defendants', principal having 
 accepted part of the raisins, and refusing to accept the rest, the plaintiffs 
 brought an action on the contract against the defendants, and endeavored to 
 make the defendants personally liable, by giving evidence that, in the London 
 fruit-trade, if the brokers did not give the names of their principals in the 
 contract they were held personally liable, although in fact they contracted as 
 brokers for a principal. It was held that the evidence of the custom was not 
 inconsistent with the written document, and Cockburn, C. J., said: "For, 
 although where a pa^ty contracts as agent there would not, independently of 
 some further bargain, be any liability on him as principal, yet if a man — 
 though professing on the face of the contract to contract as agent for another, 
 and tqbind his principal only, and not himself — chooses to qualify that contract 
 by saying that he will make himself liable, though he is contracting for another, 
 and giving to another rights under the contract, he himself will incur the same 
 liability as the principal. Now, although where a party professes to contract as 
 broker it might, prima facie, be taken that he contracts without the intention of 
 incurring liability on his own part, yet if by the custom of the particular trade 
 there is that qualification of the contract which, 1£ written into the contract 
 in extenso, would undoubtedly bind him, that qualification may, I think, be im- 
 ported into the contract by evidence of the custom." And evidence is admissible 
 to show that the word " agent," in the piano trade, includes those who buy and 
 sell pianos on their own account.' 
 
 In Allen v. Sundius,^ the defendants, a firm of ship-brokers, being employed 
 by an agent of the French government to procure for them the charter of two 
 ships, a person named Lament, who was also a ship-broker, informed the 
 defendants of two ships, called the New York and the Glasgow, which could be 
 chartered. After considerable negotiation and a good deal of correspondence 
 between the three, — Lamont, the defendants, and the owners of the ships, — the 
 New York was chartered for three months, and the following letter was there- 
 upon written by the defendants to Lamont : — 
 
 "London, November 10, 1854. 
 " Mr. B. Lamont, Liverpool. 
 
 "Sir: In consideration of your having introduced us to Mr. Langlands, and 
 assisted us in procuring the charter for the screw steamship New York, we hereby 
 engage to allow you two and a half per cent (2J) out of our commission as we 
 receive it. Your obedient servants, 
 
 " Smith, Sundius & Co." 
 
 Subsequently the Glasgow was also chartered, and the charter of the New 
 York was renewed for another six months. The assignees of Lamont then 
 claimed commission at the same rate on the charter of the Glasgow, and also 
 on the renewed charter of the New York, and on the trial proposed to prove a 
 usage of trade among ship-brokers by which an "introducing broker" was 
 entitled to share the commission on all renewals by the same parties of charters 
 effected through his introduction; but the chief baron rejected it, being Of 
 opinion that it was inconsistent with the agreement contained in the letter to 
 Lamont, and the plaintiffs took a nonsuit. In the Court of Exchequer, a rule for 
 
 » Whittemore v. Weiss, 33 Mich. 348. • 1 Hurl. & Colt. 128 
 
384 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Principal and Agent. 
 
 a new trial was made absolute. "I am of opinion," said Bramwell, J., "that 
 the rule ought to be absolute. There are two questions, both of which I shall 
 briefly advert to. One arose thus : The bankrupt Lamont said : ' I Introduced 
 you, the defendants, to certain ship-owners, and you procured a charter for them 
 from the French government ; and part of the bargain between us was that I 
 was to receive a portion of your commission,' viz., £2 10s per cent, which I 
 believe is the ordinary commission allowed to ' introducing brokers,' as Lament 
 was called. Lamont also said: 'The French government has renewed the 
 charter with the ship-owners, and you, the defendants, have received a repetition 
 or renewal of your commission upon this renewed charter, and I claim from you 
 a repetition or renewal of my commission, and I will prove there is a custom 
 which entitles me to make that claim.' Evidence to that effect was tendered, 
 and rejected by my lord, I think, erroneously. There is no doubt about the 
 principle. A custom may be annexed to documents with which it is not incon- 
 sistent. The question then is, whether this custom is inconsistent with the 
 written agreement between Lamont and the defendants. If inconsistent, or 
 Incoherent vrith the agreement, it cannot be annexed to It. It seems to me it 
 would be coherent with It, because, as I understand the bargain between Lamont 
 and the defendants. It was this : ' I will receive from you £2 10s per cent as 
 my share of your commission.' To my mind, there would have been nothing 
 inconsistent If, that being In writing, the writing had gone on to say, ' not only 
 upon the first charter, but upon any renewed charter In respect of which you 
 may get any commission from the ship-owners.' Whether the evidence, if 
 admitted, would have proved that agreement it is not necessary to say. I think 
 such a custom ought to be narrowly watched; but nevertheless I think that, 
 according to law, the evidence was admissible. The other point was this : It 
 was said by Mr. Karslake that, independently of any custom, It was a question 
 for the jury whether the bargain between Lamont and the defendants did not 
 extend to the Glasgow as much as to the New York. I think there was evidence 
 to that effect which ought to have been submitted to the jury. In my opinion, 
 therefore, on both points the plaintiffs are entitled to have the rule made abso- 
 lute." Maktin, B.; "I am of the same opinion. The facts of the case are 
 these : The bankrupt Lamont, who formerly carried on business as a ship-broker 
 at Liverpool, was examined on behalf of the plaintiffs, his assignees, and his 
 evidence was that in November, 1854, he came to London and had an Interview 
 with Duncan, one of the partners In the defendants' house, and he then com- 
 municated to Duncan that he knew of two vessels, the New York and the 
 Glasgow, which might be chartered by the French government (for whom 
 the defendants were authorized to act by Messrs. Pastrie, the agents of 
 that government), and that Duncan agreed that he should share the com- 
 mission with the defendants with respect to those two vessels. That was 
 what Lamont proposed; and he persevered in stating that he was to have 
 one-half of the commission. There was, therefore, his positive evidence to 
 that effect, but there was also a variety of letters and communications 
 between him and the defendants and the Glasgow and New York Steamship 
 Company, which were to a degree Inconsistent with It; and I should not have 
 been surprised if the cause had gone to the jury; nor shall I be surprised, 
 should the case be again tried, if the jury find they do not believe parts 
 
PRINCIPAL AND AGENT. 385 
 
 Miscellaneous Usages. 
 
 of Lament's evidence, and ra,ther give credit to his writings. However, the 
 ■question whether the evidence of Lamout was true or false is for the jury, not 
 for the court. With respect to the New York, Ms claim was this: that he was 
 a party to the employment of the defendants In the sense I have stated, and he 
 swore to an express agreement to divide the commission with them. I entertain 
 BO doubt that an ' introducing broker ' is entitled to receive, and does receive, 
 from the ' working broker ' a portion of his commission. That is a common 
 practice in London and other places where ships are chartered. As regards the 
 New York, the plaintiffs admit that Lament has received all he is entitled to in 
 respect of the first charter, and they proposed to prove a custom that on a 
 charter of this kind being renewed, the ' introducing broker ' was entitled to 
 Teceive a portion of the commission payable on the subsequent charter. Whether 
 the evidence would have established the custom, or whether the custom, when 
 proved, would have entitled the plaintiffs to recover, I do not know; but it 
 seems to me they were entitled to give evidence of what the custom was, and that 
 it was not competent to the judge to reject it. With respect to the Glasgow, 
 the claim depends on a different principle. The first communication between 
 Duncan and Lament took place on the 7bh of November, 1854, and on the 10th a 
 written agreement was entered into. A letter was written, stating the precise 
 terms of the agreement between Lament and the defendants with respect to the 
 New York, but there was no writing with respect to the Glasgow. Now, I agree 
 that if two persons negotiating a contract consent to reduce it to wHting, that 
 writing is conclusively the contract. But, for the purpose of bringing that rule 
 to bear, it must be established that the parties meant to reduce the entire con- 
 tract to writing ; and if it be established that only a portion of it is reduced to 
 writing, there is nothing in law to prevent evidence being given to show what 
 the real bargain was. I am clearly of opinion that the letter of the 10th of 
 November, 1854, does not refer to the Glasgow (assuming the parol evidence 
 given by Lament to be true), and that it was intended to refer to the New York 
 only; consequently, putting aside the custom altogether, the plaintiffs have a 
 right to have it submitted to the jury whether they are entitled to recover in 
 respect of the first charter of the Glasgow. That having been withdrawn from 
 them, in my opinion there ought to be a new trial. I am of this opinion simply 
 upon the facts of the case. There are letters in which a vast deal is inconsistent 
 with Lament's statement. The jury are the proper tribunal to try that, and in 
 my opinion it was not competent for the judge to withdraw it from them." 
 Pollock, C. B.: "I agree with my brother Bramwbll that a custom such as 
 this, which controls the written contract of the parties and makes them agree 
 to something which they have net expressed, ought to be carefully watched, and 
 restrained vyithin reasonable limits. And I own I think that where one broker 
 introduces a vessel to another, a custom to share the commission so long as the 
 vessel shall be chartered by the same party, or indeed by any other party, 
 through the same broker, is of extremely doubtful legality. But I am not influ- 
 enced in my decision by that consideration. A custom may, by evidence, be 
 attached to any ordinary course of business so as to introduce a term not incon- 
 sistent with that course of business; and undoubtedly where one broker intro- 
 duces a vessel to another, a custom may be shown that the broker so introducing 
 it is entitled to a share of the commission on that particular charter; but I think 
 
386 THKIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Suretyship — Attorney and Client. 
 
 such a custom cannot be extended to a special agreement between the parties, 
 entirely independent of the usual course of business. If the relation of the- 
 parties is settled by an agreement not corresponding with the usual course of 
 business, I think the custom ought not to be received in evidence. The case, as- 
 before me, certainly presented that aspect. The agreement with respect to the 
 commission was entirely out of the ordinary course of business, but by their 
 special agreement. For that reason I rejected the evidence that was offered, 
 not as evidence of a custom controlling every agreement, but as evidence of 
 what the custom was in the ordinary course of business. It is clear that this 
 agreement was not in the ordinary course of business, and therefore the custom 
 does not apply. Of course, I express this opinion with some doubt, after hearing 
 that my brothers Martin and Bkamwbli. are of a different opinion, but I still 
 think that what I did at Nisi Pnus was correct." 
 
 §192. Otlier Cases — Suretyship — Attornay and Client. — And, in indi- 
 vidual cases, evidence has been admitted to expound the words " currency," ' 
 "Canada money," ^ " Texas money,"' " Kentucky currency,"' " Ills, cy.,"^ as 
 used in negotiable instruments; and the terms "bond,"" " borrowed money,"' 
 " Lanier House,"* and " expected,"' as used in other contracts. 
 
 In Fox v. Parker,^" the defendants had entered into a contract by which they 
 agreed to be liable to the extent of $1,000 that one E. M. P.irker should account 
 to the plaintiff for the proceeds of paper sent him by the plaintiff to be sold on 
 commission. Plaintiff brought an action for $900, which lie alleged to be due 
 from E. M. Parker to him on account of paper sold. The defendants sought ta 
 be relieved from liability on the ground that, from time to time, notes of E. M. 
 Parker had been taken by the plaintiff on account of the business, and they 
 claimed that in this way time had been extended to their principal, and that they 
 were discharged. Evidence of a usage among those engaged in the business of 
 selling paper on commission to give notes to the manufacturer before the paper 
 is sold, so as to enable him to raise money thereon in anticipation of the sales, 
 was held admissible, on the ground that such evidence did not contradict the 
 terms of the written contract, but simply went to explain and ascertain the 
 intention of the parties in relation to a matter upon which the contract was 
 silent. So, it has been held that usage may prevent a surety from taking advan- 
 tage of acts which would otherwise discharge him. " The long-continued usage 
 of the bank," said Shbplby, C. J., in Crosby v. Wtjatt,'^ " well known to both the 
 sureties, would seem to be as satisfactory evidence of an assent on their part to 
 an agreement for delay as the payment of interest in advance would be of such 
 an agreement." 
 
 In Bodfish v. Fox,'"- the defendants, a firm of attorneys, being sued for money 
 in their hands received in satisfaction of a judgment rendered for the plaintiff, 
 
 1 Palmer v. State Hank, 16 Iowa, 321 ; Far- « Stone v. Bradbury, 14 Me. 185. 
 well V. Fay, 7 llo. 595 ; Cooki-ill o. Kivkpat- ' Murray v. Spencer, 24 Md. 5-30. 
 rick, 9 Mo. 697; Chambers v. George, 1 Litt. ' Harris i'. Dub, 57 Ga. 77. 
 
 335- » Bald v. Raynor, 1 Mee. & W. 343. And 
 
 2 Thompson v. Sloan, 23 Weni. 71. see Fawkes v. Lamb, SI L. J. (Q. B.) 98. 
 ' Roberts v. Short, 1 Texas, :!7.i. )" 44 Barb. 541. 
 
 ■1 Lampton n. Haggard, 3 Mon. 149. " 23 Me. 166. 
 
 ■' Hulburt V. Carver, 37 Barb. 62. But see '= 23 Mc. 90. 
 
 Illinois cases, posf, Chai). V. 
 
BAILMENTS AND SALES. 387 
 
 Usage to Explain Deeds. 
 
 claimed the right to retain the whole of the bills of cost, exclusive of witnesses' 
 fees and money advanced by their client, the plaintiff, in addition to the regular 
 charge for term-fees and arguing-fees, as belonging to them as attorneys in a 
 suit, on a successful defence, by the common usage of the bar in Portland for 
 many years. On the trial, they introduced evidence showing that the practice in 
 tUat county had been for many years for the attorney to charge his client with a 
 term-fee at each term, excepting the term at which the case was argued, when 
 an arguing-fee was taxed instead thereof; and in addition thereto, when the 
 defendant prevailed, to charge his client with the taxable costs, exclusive of 
 witnesses' fees and money advanced by the client. The plaintiff, in order to 
 show that the defendants had agreed with him as to the amount of their charges 
 read a letter from them, in which was said : " Yours of the 5th inst. we have 
 this day received. In answer, have to say that the U. S. C. C. does sit here on 
 the 1st day of May next. We send, as is requested, our bill against you, and if 
 the cause is tried, our charge for arguing-fee and services at the May term will 
 probably be about $30." With this letter was sent a bill of the regular charges 
 at each prior term, and of some small payments. It was held that the usage was 
 not in conflict with any contract. Said Sheplby, J. : " It is further contended 
 that it should not have been received, because there was proof in the letter of 
 the defendants of a special contract to perform the services for an agreed com- 
 pensation. The usage does nbt appear to be, as the argument supposes, in con- 
 flict with the contents of the letter. Nor does the letter show that there was 
 a compensation agreed upon between the parties. It was written while the 
 suit was pending, and states the charges which would be claimed for the services 
 performed. The usage does not present any other or different claim as then 
 existing. It presents one as first arising upon a determination of the suit 
 favorably for the defendant." 
 
 § 193. Bailment or Sale. — So, a contract which on its face is a bailment 
 may be shown to be a sale. Thus, in Dawson v. Kittle,^ a memorandum acknowl- 
 edged the receipt of a quantity of grain "on freight." These words, in law, 
 imported a bailment; but Nelson, C. J., admitted the evidence of dealers in 
 grain to show that, according to the custom among them, they meant an abso- 
 lute sale. Similar evidence was admitted in Goodyear v. Ogden,'' to explain 
 the meaning of the words "in store" in the same way. Where, on an action 
 for goods sold and delivered, a paper in the following words, signed by 
 the defendant, was introduced as the contract: "Eeceived of S. 50 barrels of 
 provisions for account of D.," it was held that parol evidence was admissible to 
 show that the paper did not mean a sale, or that the provisions were received on 
 an account due D., but that they were received in accordance with the defend- 
 ant's course of business to sell on commission.' 
 
 § 194. When admissible to -explain Deeds.— Usage is admissible to explain 
 the language of a deed,* when ambiguous or equivocal — as, for example, to 
 
 ' 4 Hill, 107. ' MoKinstry ». Pearsall, 3 Johns. 319. 
 
 2 4 Hill, 104. Ana see Irwin v. Clark, 13 * Cortelyou v. Van Brandt. 2 Johns. 357 ; 
 
 Mich. 10 ; Chase v. Washburn, 1 Ohio St. 252 ; United States v. Peohman, 7 Pet. 51 ; Mitchell 
 
 Carlisle v. Wallace, 12 Ind. 252; Hughes v. «. United States, 9 Pet. 711. 
 Stanley, 15 Iowa, 622. 
 
388 THEIR ADMISSIBIHTY TO EXPLAIN CONTRACTS. 
 
 Words and Phrases in Deeds. 
 
 construe the words " gravel," ' or " waste lands," ' or " zinc," or "premises," « 
 or "colliery,"* to show what is understood as passing by the conveyance of a 
 " saw-mill," ' or by a license to cut "timber for building." « In the case of a 
 deed of a burial-lot, it may be shown that it is customary for the proprietors of 
 cemeteries to have the exclusive control of the avenues and alleys therein;' and 
 where a deed gave the " privilege of deepening the ditch," evidence of the usual 
 mode of deepening ditches was admitted to explain the words.' A call in an 
 instrument for " Clough Overton's survey " may be shown to have been intended 
 for the survey of another person, but that at the time it was usually known as 
 " Clough Overton's survey." ' Where a deed described the boundaries between 
 two mining-claims as "running thence north twenty-three degrees and fifteen 
 minutes, west six hundred and forty-three feet to a pine stake, and thence north 
 forty-five degrees west to Devil's Caaon," parol evidence was admitted to show 
 ttat it was the custom of the locality to run boundary lines by the magnetic 
 meridian.*" So, the form of deeds is a matter of usage." A purchaser under a 
 land contract that does not specify what sort of deed he is entitled to, may de- 
 mand a deed with the customary covenants.'^ And usage may prove a dedi- 
 cation.i' In an action of ejectment in Missouri it appeared that a patent issued 
 to A. had been from an early day in the possession of W. To explain 
 this fact and support a title claimed under W., evidence was offered, and 
 rejected, to show that it was the custom in early times in that State to assign 
 duplicate certificates of land entries by a writing on the back of the certificate, 
 and that such assignments were usually recognized as suflicient conveyances. 
 "We cannot perceive," said the Supreme Court, "upon what principle this 
 evidence could have been received. Under the law of Congress, an assignment 
 of the certificate of entry would have authorized the issuance of the patent in 
 the name of the assignee, and if defendant intended to rely upon such assign- 
 ment, the evidence offered was not competent to establish it. Nor was it admis- 
 sible for the purpose of explaining W.'s possession of the patent, which could 
 avail nothing to those claiming under W. unless it was also shown that he 
 became the possessor of it by virtue of an assignment of the certificate, or in 
 some other way recognized by law as sufficient to pass a right to it." " 
 
 In a case before Lord Ellenborough, in 1817, a scire facias had been brought 
 to repeal a patent obtained by the defendant for the manufacture of hair- 
 
 I Brown v. Brown, 8 Meto. 573. was admitted, but to ascertain the sense in 
 
 " Prather v. Boss, 17 Ind. 495. which it was used by the parties. The term 
 
 ' New Jersey Zinc Co. v. Boston Frank- has two meanings, one common and the 
 
 Unite Co., IS N. J. Eq. 418. other technical. Unprofessional men gen- 
 
 * Carey ». Bright, 58 Pa. St. 70. erally mean, in stating courses, the lines 
 
 6 Farrari;. Staokpole, 6 Me. 154. indicated by the compass, without making 
 
 « Livingston v. Ten Broeck, 16 Johns. 14; any allowance for variation in the needle; 
 
 8 Am. Dec. 287. And see, generally. Cam- and even professional surveyors, as appears 
 
 bridge o. Lexington, 17 Pick. 230; Spring- from the evidence in this case, would not 
 
 stein ». Sampson, 32 N. T. 706; Parsons v. consider the true meridian as intended, 
 
 Miller, 15 Wend. 662; French v. Oarhart, 1 unless specially so informed." Field, J., 
 
 ^- ^- 102. In Jenny Lind Co. t>. Bower, 11 Cal. 194. 
 ' Seymour ». Page. 33 Conn. 66. n Kirkendall v. Mitchell, 3 McLean, 144. 
 
 8 Collins V. DriscoU, 31 Conn. 43. n Gault v. Van Zile, 37 Mich. 22. 
 
 » Seay v. Walton, 6 T. B. Mon. 368. w Sevey'a Case, 6 Me. 118. 
 
 10 " It was not to contradict or vary the " Avery v. Adams, 69 Mo. 803. 
 meaning of the term north that the evidence 
 
SPORTING USAGES. 389 
 
 Illustrations. 
 
 brushes, which were described as "tapering brushes." The specifications 
 showed that the mode of manufacturing the patent brushes differed from others, 
 in that ibe bristles were taken, of the length of an inch and a quarter, and, 
 before their insertion in the wood, were mixed up together and then drawn 
 through the holes and secured by a brass wire, the bristles being then of unequal 
 length. The common mode in use required the bristles to be inserted in the 
 stock, as near the same length as possible, they being afterwards cut down so as 
 to be of the same length. Lord Ellbnbokough : " Tapering means, gradually 
 converging to a point. According to the specification, the bristles would be of 
 unequal length, but there would be no tapering to a point, which the descrip- 
 tion assumes." Counsel for the defendant then stated that by compressing the 
 bristles in each tuft of hairs the effect would be to make them converge to a 
 point ; and he suggested that the brushes were known by this description in the 
 trade. Lord Ellenborough : "If the word ' tapering ' be used in its general 
 sense, the description is defective ; there is no converging to a point. If the 
 term has had a different meaning annexed to it by the usage of the trade, it may be 
 received in its perverted sense. At present, however, I cannot hold out any pros- 
 pect that the difficulty arising from the grammatical consideration can be 
 removed." The evidence afterwards introduced did not remove the objection, 
 and Lord Ellenborough advised the jury to find that it was not a " tapering" 
 brush, which they did.^ 
 
 § 195. Sporting Usages. — Evans v. Pratt ' declared the admissibility of a 
 sporting usage. The plaintiff and defendant had signed the following agree- 
 ment: — 
 
 " Pratt and Evans. 
 
 " "fhomas Holyoake, Esquire, Umpire. 
 
 "Frederick Pratt bets Thomas Evans £100 to £25, P. P. (play or pay), Mr. 
 
 Byley's brown mare (late his property) beats Thomas Evans' mare Matilda, 
 
 four miles across a country, thirteen stone each. To come off 1st March, 1841. 
 
 The umpire's decision to be final. 
 
 " Thomas Evans, 
 
 "Fredbrick Pratt." 
 
 The race duly came off on the day appointed, and Mr. Ryley's brown mar^ 
 came in first, and Mr. Evans' Matilda last. But the umpire decided that the 
 plaintifE's mare was the winner, as the first horse had passed through a gate-way 
 instead of going over the hedge, as the rules of steeple-chasing required. Mr. 
 Pratt, being dissatisfied with this decision, refused to pay, and Mr. Evans there- 
 upon brought suit for the £100, when it was ruled that evidence that, according 
 to the usage of sporting men, " across a country " meant that the riders were to 
 go over all obstructions, and were not at liberty to avail themselves of an open 
 gate, was admissible. " The contract declared upon, and proved by the memo- 
 randum produced, was that the horses were to run ' four miles across a country.' 
 This is an expression of which we cannot take judicial notice. The meaning of 
 that expression was a question for the jury, to be decided by them upon the 
 evidence before them. The evidence showed that by this expression the rider 
 
 1 Kex V. Metcalf , 2 Stark. N. F. 249. " 8 Man. & G. 759 ; 4 Scott N. B. 378. 
 
390 iHiai: admissibility to explain contracts. 
 
 Miaes and Mining. 
 
 is excluded from riding through an open gate." So, in an early Pennsylvania 
 case, ill a suit on a written wager, evidence was admitted that, by the custom of 
 sportsmen, when either party relinquishes the deposit the bet is at an end.^ 
 
 § 196. Mines and Mining. — In Clayton v. Qregson,'' the custom of miners was 
 admitted to explain the meaning of a word in a lease of a coal-mine. The lessees 
 of a coal-mine had covenanted with the lessors that they would by a certain time 
 get all the demised coal in a certain township, " not deeper than, or below the 
 level of " the bottom of a mine under a. certain point, at the surface. In an 
 action for the breach of the covenant, a question arose as to what portion of 
 the coal the lessee was bound to get, as lying " not deeper than, or below the 
 level of" the mine. The plaintiff contended that the word "level" must be 
 understood in its ordinary sense, but the defendant maintained that in the lease 
 in question the word "level," according-to the custom and understanding of 
 miners, had reference to the drainage, and that every part of the mine which 
 would require to be drained from a point lower than the bottom of the mine 
 under A. was below the " level " of the bottom there, though it might be above 
 the horizontal plane passing through such part of the bottom, and offered evi- 
 dence to prove this understanding. Alderson, J., who presided at the trial, 
 rejected the evidence, but his ruling was reversed in the King's Bench. Lord 
 Drnman, C. J., said: " We are all of the opinion tliat the evidence was receiv- 
 able. The learned judge who tried the cause does not appear to have had a 
 strong opinion on the subject, but only to have put the question in the most 
 convenient course for ultimate decision. The word ' level * is not in itself a 
 technical word, but it is used in a particular business in such a manner that it 
 may, consistently with its general meaning, have a particular meaning also. It 
 is a term which, in its general use, may have more than one meaning, and as it 
 is employed here it clearly has a technical sense, and may properly be explained 
 by evidence." Littleuale, J.: "I am of the same opinion. The word is like 
 many others in the English language, which may have several meanings." 
 Pattkson, J. ; " The word ' level' must be taken secundum subjectam materiam. 
 Here it is a term used in mining, and, as such a term, requires explanation." ' 
 
 § 197. Contracts for Labor and Materials. — Contracts for labor to be per- 
 formed and materials to be furnished have given rise to disputes which only 
 
 1 Morgan ». Richards, 1 Browne, 173. embracing such claim ; and such customs, 
 
 2 6 Ad. & E. 303. usages, or regulations, when not in conflict 
 ' As to customs of mining and mines, see with the Constitution and laws of this State, 
 
 Colman v. Clements, 23 Cal. 245; Roach v. shall govern the decision of the action." 
 
 Gray, 16 Cal. 883; English v. Johhson, 17 Code Proo. Cal., § 621. And see Bradley ». 
 
 Cal. 107; Gore v. McBrayer, 18 Cal. 632; Lee, 38 Cal. 362; Correal). Frietas, 42 Cal. 
 
 Waring v. Grow, 11 Cal. 366; Martin v. So- 341; Harvey v. Ryan, 42 Cal. 637; Strong v. 
 
 lombo, etc., Mining Co., 26 Cal. 527; Hicks ». Ryan, 46 Cal. 33; Dutch Flat Water Co. ». 
 
 liell, 3 Cal. 219; Prossor «. Parks, 18 Cal. 47 ; Mooney, 12 Cal. 534; Sullivan v. Hense, 2 
 
 Packer v. Heaton, i) Cal. 568; St. John v. Col. 424. As to customs under the Mexican 
 
 Kidd, 26 Oal. 263; Table Mountain Tunnel law.see Van Schmidt i'. Huntington, 1 Cal. 55. 
 
 Co. 1). Stvanahan, 31 Cal. 3S7. A California And see, further, Golden Fleece Co. v. Cable 
 
 statute provides: "In actions respecting Co., 2 Nev. 312; Oreamuno v. Uncle Sam, 
 
 miningolaims, proof shall be admitted of etc., Co., 1 Nev. 215; Mallett ». Uncle Sam, 
 
 the customs, usages, or regulations estab- etc., Co., 1 Nev. 188; Kinney v. Consolidated, 
 
 lished or in force at the bar or diggings etc.. Mining Co., 4 Sawyer, 382. 
 
CONTRACTS FOR LABOR AND MATERIALS. 391 
 
 Miscellaneous Usages. 
 
 evidence of usage could settle. In Jordan v. Meredith,^ decided by the Supreme 
 Court of Pennsylvania in 1801, the action was for money due for plastering two 
 houses, and the dispute was as to the mode of measuring, the plaintiffs insisting 
 that according to the usage of plasterers in Philadelphia they were entitled to 
 the rate per square yard contracted for, not only for the surface actually plas- 
 tered, but for one-half of the size of the windows. But the court said: "The 
 ipretended usage of the plasterers in the present instance is unreasonable, and 
 t)ad in itself. To charge an employer with materials never received, is the 
 iieight of injustice." It is not easy, however, to reconcile this case with sub- 
 sequent ones in which similar questions have been presented. In Pittsburg v. 
 O'Neill,'' decided by the same court forty-four years later, it was ruled that the 
 number of bricks laid in a pavement, under a contract, might be computed by 
 allowing a given number to the square yard, according to the usage of pavers. 
 In Ford v. Tirrell^ (Massachusetts, 1857), the contract was to build the wall of 
 an octangular cellar at the rate of eleven cents per foot, and the dispute was as 
 -to the mode of measurement, — the defendant contending that the inner surface 
 ■of the wall should be the rule ; the plaintiff, that an additional allowance should 
 be made for the necessary work at the angles to support the building, — and it 
 was held that it was competent to prove a local usage of measuring cellar walls, 
 in order to interpret the contract. In Lowe v. Lehman * (Ohio, 1864), on a con- 
 tract to furnish and lay up brick at a certain price per thousand, the controversy 
 -was as to the proper mode of counting the bricks, and evidence of a usage among 
 builders to estimate by measurement of the walls on a uniform rule based on 
 the average size of brick, making slight additions for extra work and wastage, 
 ■deducting openings in walls, but not for openings in chimneys, nor gambs, was 
 ruled to be admissible. In answer to the suggestion that the custom was unrea- 
 sonable, the court said: "We are unable to see anything unreasonable in the 
 ■custom. The workman was to furnish the brick and materials, and lay them up 
 by the thousand. The contract contains no specifications of the dimensions, 
 shape, angles, openings, or arches of the wall, or of the size of the brick. It 
 does not require a mason to know that the value of the work and materials 
 depends much upon these, and such like conditions, if they are to be paid for by 
 the numerical thousand. Again : the brick are to be furnished as well as laid up. 
 Where and how will you count them numerically? Will you count them at the 
 kiln, on the ground, or in the wall? And who will lose the breakage in trans- 
 portation and in handling, and the waste of filling them into the wall. Some 
 fair measurement of the wall would seem to be a more reasonable method. And 
 we cannot say that this method was not a fair one. It slightly increased the 
 estimated number of bricks in the wall, it is true, by making small additions for 
 •extra work, and extra waste of bricks at the angles and openings ; and the rule 
 ■of measurement adopted fixes upon an ai'bitrary and uniform dimension for the 
 average size of the brick, which may vary slightly, but cannot vary very much 
 from their true average size. All this seems to be reasonable." The foregoing 
 cases were reviewed and the question of the reasonableness of such usages was 
 •considered in a lengthy and exhaustive manner by the Court of Appeals of New 
 
 ' 3 Yeate8, 318. ' 9 Gray, 401. 
 
 2 \ Pa. St. 343. * 15 Ohio St. 179. 
 
392 THEIK ADMISSIBimy TO EXPLAIN CONTKACTS. 
 
 Contracts for Labor and Materials. 
 
 York in 1872, in the case of Walls v. Bailey.^ The plaintiffs contracted, in 
 writing, to furnish the materials to do certain plastering for defendant, at so much 
 per square foot. They charged him for the full surface of the wall, without 
 deducting for cornices, base-boards, or doors and windows. On the trial, proof 
 that this was the customary method among plasterers in measuring work was 
 allowed. The Court of Appeals sustained the ruling of the lower court in this 
 particular. Said Folgbb, J. ; " The contract between the parties was in writ- 
 ing. By it the plaintiffs were to furnish the material for the plastering-work of 
 the defendant's house, and to do the work of laying it on. The defendant was 
 to pay them for the work and material a price per square yard. Of course, the 
 total of the compensation was to be got at by measurement. But when the 
 parties came to determine how many square yards there were, they differed. 
 The query was, the square yards of what? Of the plaster actually laid on, or of 
 the whole side of the house, calling it solid, with no allowance for the openings 
 by windows and doors? " After examining the prior adjudication, the learned 
 judge continued: "So, in the case before us, how shall the number of the 
 square yards of work done be ascertained? is not so determinately reached by 
 the language of the contract as that the law can say there was but one method 
 in the minds of the parties, and this is it." Referring next to the case of Jordan 
 V. Meredith, the judge concluded his opinion by showing that such a usage wa& 
 not necessarily unreasonable, and could not, therefore, be rejected on that 
 ground: "The appellant has cited us to Jordan v. Meredith,^ in which it is said 
 that the pretended usage of plasterers to charge for a part of the openings is 
 unreasonable and bad. The reason there given why it is so, is that it is the 
 height of injustice to charge an employer with materials never furnished. But 
 as to this case, it is to be remarked that this expression is obiter. For it did not 
 appear that the jury found that there existed the usage commented upon ; and 
 the decision of the case is put upon the ground that there was no proof that the 
 jury had been governed by a usage. Again : the remark is confined to a consid- 
 eration of the material furnished, whereas the usage claimed in the case before 
 us is concerned as well with labor performed. And the usage is not designed to- 
 obtain payment for ma,terial never furnished. It is a method devised for more 
 conveniently and readily ascertaining the quantum of compensation for what 
 work has been done in fact, and what material has been in fact furnished. It is 
 agreeable with common sense that it is more difficult, asking more skill and 
 care, requiring more time to plaster about the frames of doors and windows and 
 along the edges of base-boards and cornices than over the plain, uninterrupted 
 surface of wall and ceiling. The more, then, of such openings or obstacles,, 
 the more, in proportion to the space of plaster actually laid on, should be the 
 compensation. And it matters not, in law or in reason, how the amount of 
 that greater compensation is arrived at ; whether by a minute and precise calcu- 
 lation of part plain and of part broken space, at a greater price for the square 
 yard of space actually covered, or by an assumption that the whole surface 
 worked upon Is plain, and then payment be made for it at a less price per square 
 yard thereof. The aim which the usage takes is at a compensation wliich shall 
 be just to employer and employed. The mode of reaching it proposed by the 
 usage does not infringe upon any principle of law, for it is but a mode. It is 
 
 49 N. Y. 484. s s Ycates, 318. 
 
CONTKACTS FOR LABOR ANU MATERIALS. 393 
 
 Miscellaneous Usages. 
 
 not unreasonable ; for the price per square yard will, in the rivalry or competi- 
 tion for the work, be made to a^ree in amount with the method used of ascer- 
 taining the number of yards, and the difference in the amount of material 
 furnished will be but a make-weight in determining the compensation for the 
 labor performed." 
 
 Where, by a building-contract, the plaintiff agreed to make certain alterations 
 and repairs upon the defendant's house, for which the latter agreed to pay 
 twelve shillings "per day" for each man employed, it was held competent to 
 show a usage among carpenters that ten hours constituted a " day's " work, and 
 entitling them to charge one day and a quarter for each natural day during 
 which the men worked twelve hours and a half. " Here," said Bronson, J., 
 " the plaintiff was to be paid for his workmen at the rate of twelve shillings per 
 day, but the parties have not told us by their contract what they meant by a 
 day's work. It has not been pretended that it necessarily means the labor of 
 twenty-four hours. How much, then, does it mean? Evidence of the usage or 
 custom was let in to answer that question. And when we find a universal 
 usage in this business to call ten hours' labor a day's work, we have arrived at 
 the true meaning of the word ' day ' as used in this contract." ' So, where A. 
 and B. entered into a contract by which A. was to cut and lit the stone for walls 
 of a tunnel at a specified price per foot, " the face of the work that shows to be 
 measured, and none else," and A. claimed that "the face of the work " included 
 all the cut and dressed surface exposed, both horizontal and perpendicular, 
 while B. insisted on an opposite meaning, the difference was settled by evidence 
 of usage.^ An agreement for the building of a house contained a proviso that 
 " no alterations or additions should be admitted unless directed by the architect 
 of the defendant, in writing, under his hand, and a weekly account of the work 
 done thereunder should be delivered to the architect on every Monday next 
 ensuing the performance of such work." In an action to recover a balance due 
 the plaintiff on this contract, parol evidence was admitted to show that by 
 the usage of the building trade "weekly accounts" meant accounts of the 
 day-work expended in each week on additions and alterations, and that such 
 accounts were not usually given in the case of extra work capable of being 
 measured.' And where the plaintiffs contracted in writing to build for the 
 defendant the front and back walls of a house " for the sum of 3s per super- 
 ficial yard of work, nine inches thick, and finding all materials, deductiug for 
 lights," and it appeared that the lower part of the walls to the height of eleven 
 feet was of stone, two feet thick, the remainder of brick, fourteen inches thick, 
 evidence was admitted of the usage of builders at the place to reduce brick- 
 work, for the purpose of measurement, to nine inches, but not to reduce stone- 
 work unless exceeding two feet in thickness.' Where a contract for the erection 
 of a building specifies the dimensions of the walls, floors, etc., but says nothing 
 about the roof, it may be shown by evidence of the custom of the trade that 
 such a contract did not call for a tin roof, or, indeed, any roof .^ And on a simi- 
 lar principle, and for the same reasons, evidence of usage has been received to 
 prove the meaning of "hard-pan" in a contract to make excavations," and to 
 
 ' Horton v. Locke, 5 Hill, 437. * Symonds v. Lloyd, 6 C. B. (N. s.) 691. 
 
 ' Martin v. Thrasher, 40 Vt. 460. ^ Keynolds v. Jourdan, 6 Cal. 108. 
 
 ' Myers v. Sari, 30 L. J. (Q. B.) 9 ; 7 Jur. '• Dickson v. Water Commissioners, 2 Hun, 
 
 (N. s.) &7. 615 ; Dubois v. Delaware, etc., E. Co., 12 
 
394 THEIR ADMISSIBILITZ TO EXPLAIN CONTRACTS. 
 
 Master and Servant — Contracts of Service. 
 
 explain the terms "business card," "advertising chart," and the word "pub- 
 lished," in an agreement to pay another a certain sum " for inserting business 
 card in two hundred copies of his advertising chart, to be paid when the chart 
 is published." ' 
 
 §198. Master and Servant — Contracts of Service. — We have seen that 
 contracts of service may be explained by usage ; '' and this is so, as well, where 
 the contract has been reduced to writing. Thus, in <^usen v. Inhabitants of Stoke- 
 upon-Trent,^ workmen were hired for a year under a contract whereby they 
 engaged " to serve B. & Co. from 11th November, 1816, to 11th November, 
 1817, * * * to lose no time on our own account, to do our work well, and 
 behave ourselves in every respect as good servants." It appearing that one of 
 them had occasionally absented himself on holidays during the year without his 
 master's permission, it was ruled in the Court of Queen's Bench, reversing the 
 opinion of the trial court, that evidence was admissible to show that it was the 
 custom of that trade for the workmen to take certain holidays, and to absent 
 themselves on such occasions without their master's permission. Again: in 
 Qrant v. Maddox,*^ the plaintiff was an actress and the defendant a theatrical 
 manager, and by a written contract she agreed to perform at his theatre, and 
 the defendant agreed to engage her for " three years," and pay her a salary of 
 £5, £6, and £7 " per week ',' in those years, respectively. In an action on the con- 
 tract, the plaintiff contended that she was entitled to receive the salary stipu- 
 lated for every week of the whole of the three years, but the defendant tendered 
 evidence, which was admitted, to show that according to the understanding and 
 ■custom of the theatrical profession, under an engagement to perform for one or 
 more " years," actors were never paid during the time of vacation, but only 
 during what was called the theatrical season. Where the defendant covenanted 
 to teach the plaintiff the trade of " a cabinet and mahogany door maker," evi- 
 dence that these words, as used in the trade, included only the making of doors 
 of mahogany and ornamental woods was admitted. " Where terms of art are 
 used," said Mitohbli,, J., " and have acquired a definite meaning known to 
 those engaged in it, but not plain on the face of the agreement, evidence may be 
 received as to what that meaning is. Thus, no one not familiar with the trade 
 could tell all that a lad should be taught who was to learn the trade of a cabinet- 
 maker; noi would one know from the words alone that a mahogany door maker 
 was one who made the frame of the door from pine wood, and only laid on 
 veneers of mahogany." 
 
 In Parker v. Ibbetson,^ the defendants were manufacturers of woollen cloths, 
 and the plaintiff agreed to serve them as agent, under a written agreement as fol- 
 lows: " P. engages to serve the said I. & Co. as agent or representative, at the 
 salary of £150 per annum in consideration thereof. Also provided, that at the 
 end of the year, if I. & Co. find the said P. has done sufficient business to justify 
 thenx in recompensing him by making up his salary to £180, to do so, being a 
 
 Wend. 834 ; ». o. 15 Wend. 87 ; Currier v. Bos- = Ante, pp. 134-136. 
 
 ton, etc., R. Co., 34 N. H. 498. a 5 Q. B. 303. 
 
 ' Stoops V. Smith, 100 Mass. 63. Compare * 15 Mee. & W. 737. 
 
 Hotson V. Browne, 9 0. B. (N. S.) 442; Zor- » 4 0. B. (N. S.) 346. 
 rahn v. DUson, 117 Mass. 653. 
 
MASTER AND SERVANT. 
 
 sm 
 
 Explaining Contracts of Service. 
 
 donation of £30 to his present stipulated amount of £150." This agreement 
 was entered into on the 30th of January, and the plaintiff continued in the ser- 
 vice until the 1st of August, receiving his salary monthly, when the defendants 
 gave him a month's notice to quit. For this dismissal, which the plaintiff con- 
 tended was wrongful and in contravention of the agreement, he brought an 
 action. On the trial, the defendants called several witnesses to prove a custom in 
 the trade to dismiss at a month's notice though the engagement was at a yearly 
 salary, and it was proved that one house of prominence in the trade adopted a 
 form of hiring to exclude the custom for a month's notice, where the agreement 
 stipulated for a bonus for good conduct at the end of the year. The judge (Crbs- 
 wkll) instructed the jury that if they found that the custom existed, and that the 
 contract was made with reference to it, they should find for the defendants ; other- 
 wise, for the plaintiff.' The jury found that the custom was proved, but that 
 
 ^ Creswell, J., in summing up, said to the 
 jury: " The plaintiff in this case complains 
 that he has been dismissed by the defendant 
 on a month's notice, notwithstanding he was 
 engaged under a contract for a year. The 
 defendant, on the other hand, says : * It is 
 ti'ue,! entered into a contract with you for a 
 year; but by the custom and usage of the 
 place where the contract was made and was 
 to be fulfilled, — viz., London, — a clerk or 
 servant, though hired under such circum- 
 6t.ances, is liable to be discharged, and 
 entitled to put an end to the service at a 
 month's notice.' No doubt, with reference 
 to domestic servants the custom is univer- 
 sally so. A servant is hired at yearly wages ; 
 the hiring is yearly, but is liable to be ter- 
 minated by either party on a month's notice. 
 It does not, however, follow from that that 
 the same state of things exists with regard 
 to clerks and persons in the posiLion of the 
 present plaintiff. The circumstance of the 
 contract being in writing makes no differ- 
 ence; it is not any stronger or more binding 
 by being written, though it renders the proof 
 of its terms more easy, and less liable to mis- 
 representation or mistake. If that which 
 is here put upon paper had simply been 
 expressed by word of mouth, its legal opera ■ 
 tion and effect would have been precisely 
 the same. In order to justify his dismissal 
 of the plaintiff within the year, the defend- 
 ant, by his fifth plea, sets up the custom of a 
 month's notice; and if he proves that to 
 your satisfaction, whether the contract be in 
 writing or not makes no difference. Now, 
 the defendant has called before you several 
 witnesses to prove the custom as alleged. 
 It was not necessary, perhaps hardly possi- 
 ble, to adduce an instance exactly in point 
 of a person in the precise position of the 
 present plaintiff; but you must judge from 
 
 the general understanding of the trade in 
 analogous cases whether the parties meant 
 to contract upon the footing of that custom. 
 Where there is a general custom prevailing 
 with reference to a particular trade in the 
 place where a contract is made, and nothing 
 is said to exclude it, the contract must be 
 assumed to have been made subject to the 
 importation of the custom into it. For 
 instance, in a particular trade, a contract 
 for the sale of goods, nothing being said to 
 the contrary, is understood to be at a credit 
 of a fortnight or a month. In that case the 
 parties are supposed to contract with refer- 
 ence to the custom, and are bound by it. 
 One of the defendant's witnesses states that 
 it is the custom of the trade generally to put 
 an end to the service at a month's notice, 
 whare the hiring is yearly anrl at a yearly 
 salary. Generally speaking, a yearly salary 
 imports a yearly hiring, as in the case of a 
 butler or a coachman; and in the cases 
 under the old settlement law, » general 
 hiring at a yearly salary was always held to 
 be a hiring for a year. The principal wit- 
 ness on the part of the defendant, however, 
 on cross-examination, stated that he did not 
 remember an instance of a clerk or agent in 
 this particular trade having been dismissed 
 at a month's notice where the contract con- 
 tained such a provision as in this case — for a 
 bonus for good conduct at the end of the 
 year. That, as it seems to me, may have 
 some influence in determining your judg- 
 ment upon this question. The parties first 
 agree for a general hiring at a yearly salary; 
 then they add a proviso that if the employer 
 shall, at the end of the year, consider the 
 agent deserving of it, he shall be rewarded 
 with a donation of £30. Now, the only legit- 
 imate effect of that— assuming the custom 
 to have been established — would seem to 
 
396 THEIK ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Master and Servant — Contracts of Service. 
 
 the hiring was a special hiring, to which the custom did not apply, and returned 
 a verdict of £70 for the plaintiff. On appeal, all the judges held that the con- 
 struction of the contract should not have been left to the jury. Ckowder, 
 J., said: " I am of opinion that this rule must be made absolute. The question 
 arises in an action brought upon an agreement entered into between a clerk or 
 servant and his employer in a certain trade, which agreement is in writing; 
 and the contention at the trial was as to the existence of the custom stated in 
 the fifth plea, and its application to the contract before the court. The jury 
 were asl^ed certain questions, and invited to draw certain conclusions. These 
 were, whether the custom was proved, and whether, if proved, it was applicable 
 to the special terms of this contract. On the part of the defendant it is con- 
 tended that this latter was not a question for the jury, but for the court ; and I 
 am of that opinion. Looking at the evidence, it seems to have been established 
 that there was a general custom in the trade that a yearly hiring might be put 
 an end to by either party upon a month's notice. It is insisted on the part of 
 the plaintiff that, assuming such a custom to exist, the special terms of this 
 agreement exclude the application of it to this case. It seems to me that there 
 is no foundation for that argument. The first part of the contract amounts 
 simply to an engagement on the part of the plaintiff to serve the defendant as 
 agent, at the salary of £150 per annum ; then follows a proviso that if ' at the 
 end of the year the said Henry Ibbetson & Co. (the defendants) find the said 
 E. A. Parker (the plaintiff) has done snfBcient business to justify them in recom- 
 pensing by making up his salary to £180, to do so, being a donation of £30 to 
 his present stipulated amount of £150.' Reading this agreement, — and its con- 
 struction is for the court, and not for the jury, — it seems to me to be simply an 
 agreement for a yearly hiring at a yearly salary, and that there is nothing in the 
 proviso to alter the nature and character of the agreement. It is a mere state- 
 ment that the defendant will at the end of the year, if he shall see fit, make the 
 plaintiff a present of £30. It is clear that this £30 could not have been recovered 
 by action if the service had lasted until the end of the year. The simple question 
 is whether, looking at the custom proved, which is general, there is anything in 
 the written agreement to exclude it. I see nothing in it that can have that 
 effect. The proviso cannot exclude it; that has no reference to dismissal. 
 Then, if there is nothing in the contract that is inconsistent with the application 
 of the general custom, it is the same as if the custom had formed part of the 
 written agreement. This case must follow the ordinary rule : that wherever a 
 contract is made in a particular trade, all customs which regulate that trade are 
 tacitly incorporated into the contract unless by express terms excluded. There 
 
 be that by introducing that stipulation into that the parties meant to exclude the appli- 
 the contract they meant the custom to be cation ol the cnstom in the particular case, 
 excluded. The first question, then, for your If you think they did not contract with that 
 consideration will be whether such a custom intention, the defendant will be entitled to 
 as alleged exists in the particular trade; and your verdict. If, on the other hand, you 
 the second question will bo whether the think the custom is not established, then the 
 contract was made with reference to the dismissal of the plaintiff before the expira- 
 custom, or was a special contract to which tion of the year is not justified, and he will 
 the custom did not apply. If you think the be entitled to your verdict, with such dam- 
 evidence establishes the custom, it merely ages as you may think him fairly entitled to 
 remains for you to consider whether you for such wrongful determination of the con- 
 infer from the latter part of the agreement tract." 
 
MASTER AND SERVANT. 397 
 
 Explaining Duties of Employment. 
 
 was nothing to warrant the conclusion of the jury, and consequently the rule 
 will be made absolute ; not, however, to enter a verdict for the defendant, no 
 leave having been reserved, but for a new trial." Willes, J.: "I am of the 
 same opinion. The fact of the plaintiff having been engaged at a yearly salary, 
 under an agreement which has been reduced into writing. Is clearly not enough 
 to exclude the custom, which was proved to be general, to determine a yearly 
 hiring by giving a month's notice, just as in the case of domestic servants, 
 where, though a general hiring is presumed to be a hiring for a year, the service 
 may nevertheless be put an end to at any time by a month's notice. The ques- 
 tion is, whetlier the application of that general custom to the particular case Is 
 excluded by the concluding words of the agreement, which provide that at the 
 end of the year, if the employer is satisfied with the amount of business done, 
 he will make an addition of £30 to the stipulated salary. Would that pro- 
 viso be inconsistent with the agreement going on to say that the master should 
 be still at liberty, if so minded, to dismiss the servant at any time during the 
 year, upon giving him a month's notice? Clearly not. The custom, being 
 proved, becomes part and parcel of the contract. The jury had no right to take 
 upon themselves to say that the special contract excluded the custom. The evi- 
 dence upon which that conclusion was founded does not, in fact, negative the 
 application of the custom to a hiring under a contract like this. The witness 
 merely stated that he did not know of any instance where, under such an agree- 
 ment as the present, the custom had been acted upon." Bylbs, J. : "In cases 
 of this nature two questions generally arise — the one, a question of law : whether 
 the terms of the agreement may admit, or must necessarily exclude the custom; 
 the other, one of fact: whether, if the agreement may admit the custom, the 
 custom extends to the particular agreement. I do not, therefore, see that the 
 learned judge was wrong in leaving this latter question to the jury. The evi- 
 dence of the custom was irresistibly strong; and although the jury might, upon 
 proper evidence, have found a limited custom, there was no evidence of any 
 such limitation here . " 
 
 § 199. Same — To explain the Duties of an Employment under a -written 
 Contract. — Thus, a party agreeing to render service as "salesman," or in any 
 other capacity, should be able to show by the usages of this trade what ser- 
 vices he was to render, where his work was to be done, what goods he was to 
 sell, and how many hours a day he was to be employed.^ Thus, engaged as a 
 " lace buyer," he might show that an order from his employer to fold some lace on 
 cards was not within his contract, and that his refusal to do so would not justify 
 his dismissal;' or, engaged as a travelling salesman, and agreeing not to go 
 over " the same ground " for any other house, these words ought to be properly 
 explained by parol evidence of usage ; = and usage may explain what is included 
 in "ship-carpenters' work," as these words are used in a contract.* Where a 
 dancing-girl was engaged in France as a danseuse for a New Orleans theatre, 
 it was held that she might justify her refusal to dance a parlor dance, in full 
 
 ' Hagan v. Domestic Sewing-Machine Co., = Price v. Mouat, 11 C. B. (N. S.) 509. 
 
 9 Han, 73. And see Sweet v. Lee, 3 Man. & ' Mumford ». Gething, 7 0. B. (N. s.) 305. 
 
 G. 452; Price v. Mouat, 11 C. B. (N. 8.) 509; * Ooilyer v. Oollina, 17 Abb. Pr. 467. 
 Hosley v. Black, 38 N. Y. 438. 
 
398 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Usage to Explain Wills. 
 
 dress, In the comedy of "The Serious Family," by showing that such was-not, 
 by custom, required of danseuses.^ 
 
 § 200. Usage admissible in Explanation ol Wills. — Evidence of usage is 
 not infrequently of value in arriving at the intent of a testator, or the proper 
 construction of a charitable gift. In the great case of iShore v. Wilson,^ by deeds 
 executed in the year 1704, Lady Hewley conveyed a number of estates of great 
 value to trustees, upon trust, to pay out of the rents certain sums yearly, or 
 otherwise, to " such poor and godly preachers for the time being of Christ's 
 Holy Gospel, and to such poor and godly widows for the time being of poor and 
 godly preachers of Christ's Holy Gospel," as the trustees for the time beins; 
 should see fit. There were also other trusts of various Ijinds. Difficulty arising 
 in the Interpretation of the will, it was at last decided in the House of Lords, in 
 1842, that extrinsic evidence was admissible to show that at the date of the 
 grant there was a sect which was In the habit of calling themselves by that 
 name. In Connecticut, in 1845, a testator devised a portion of her estate to the 
 "Foreign Mission Society." There was no society of that name, but, upon 
 proof that it was customary for the testator, and many others, to speak of " The 
 American Board of Commissionei-s for Foreign Missions " by the name used by 
 him in the will, the existing society was allowed to take it.' And in a more 
 recent case in New York, where a will contained a bequest to " The Home of 
 the Friendless in New York," but there was no institution of that name, " The 
 American Female Guardian Society" was decided to be the beneficiary intentkd, 
 and entitled to the charity, it being shown that by the former name it was accus- 
 tomed to be called by its ofiScers, by its friends, and by the testator.* 
 
 So, where a testator is in the habit of using a particular tei-m in a particular 
 sense, this fact should be considered. As said by Lord Abixger, in Hiscocks v. 
 Siscocks ; * " The testator may have habitually called certain persons or things 
 by peculiar names, by which they were not commonly known. If these names 
 should occur in his will, they could only be explained and construed by the aid 
 of evidence to show the sense in which he used them, in like manner as if his 
 will were written in cipher, or in a foreign language. The habits of the testator,, 
 in these particulars, must be receivable as evidence to explain the meaning of 
 the will." In Beaumont v. Pell,^ a devise to "Catherine Earnley " was held to 
 pass to " Gertrude Yardley," there being no such person as " Catherine Earnley " 
 known to the testator, and, according to Lord Abinger in Hiscocks v. Hiscocks, 
 because the testator was accustomed to address Gertrude Yardley as " Gatty." ' 
 In a Connecticut case it was ruled that evidence that tlie testator, in speakinjr of 
 the affairs of a society (a religious corporation), in contradistinction to the 
 church in connection with which it was organized, always called it "the 
 church," was admissible for the purpose of ascertaining which body should take 
 
 ' Baron v. Placide, 7 La. An. 229. i Lefevre v. Lefevre, 2 N. Y. S. C. (T. & 
 
 'i 9 CI. & Pin. 355. And see Attorney- O.) 331 ; «. c. 59 N. Y. 434. 
 
 General v. Drummond, 1 Dr. & War. 353; 2 '5 Mee. & W. 363. 
 
 H. L. Cas. 887. 02 p. Wms. 138; Soanlan v. Wright, 13^ 
 
 3 American Bible Society v. Wetmore, 17 Pick. 523. 
 
 Conn. 186; Howard v. American Peace ' And see Thomas v. Thomas, 6 Tern* 
 
 Society, 49 Me. 298; Button ». American Bep.696. 
 
 Tract Society, 23 Vt. 349; Doe t>. Allen, 13 
 
 Ad. & E. 461. 
 
USAGJE TO KXPLAIN WILLS. 39!> 
 
 Illustrations. 
 
 a bequest to " the church." ' The rule upon which these cases are founded, 
 and its reasons, are well stated by Surrogate Bradford in Hart v. Marks.' 
 An annuity was given to " Paris Piccard," who was described in the will as 
 "my cousin." The deceased had no cousin named "Paris Piccard," but 
 proof was offered that his cousin "Priscilla Piccard" was usually named by 
 him as described in the will. Said the court: "I think this evidence compe- 
 tent. Parol proof may always be used to apply the will ; that is, to ascertain 
 the person intended by the testator, by a description which, though not ambigu- 
 ous on its face, cannot be applied precisely as expressed in the instrument. 
 Strictly speaking, the testator had no cousin named Paris ; and then the legacy 
 must fall, unless we seek by extrinsic evidence to ascertain whom he intended 
 by the description. We cannot, indeed, alter the plain terms of a written instru- 
 ment by showing the testator's declarations in contradiction of the will, or in 
 addition to it. The writing must prevail, and must be interpreted by its own 
 language. But it is entirely competent to point out by proof the person who 
 answers the description of a legatee, as contained in the will. There can be no 
 doubt on that point. But if there be no person who exactly answers that 
 description, then we are compelled to inquire, by means of extrinsic evidence, 
 whom the testator intended. The court at all times may demand to be put in 
 the place of the testator, in order to understand his will, its references, 
 allusions, and descriptions. It is only by knowing the history of the parties, and 
 looking at the surrounding facts, that we can at times clearly see what the tes- 
 tator designed. If, in describing any person in his will, he has used a name 
 which he was accustomed to apply to that party, on proof of that fact the de- 
 scription contained in the will may be applied with entire certainty. If the will 
 be written in a foreign language, it can be translated ; if it contain terms which 
 the writer ordinarily used in a peculiar sense, that can be shown; and if 
 descriptions are made by names which he was in the habit of applying to the 
 parties, his meaning can be gathered just as well from the use of those names as 
 if he had employed the appellations by which they were commonly known. 
 I have no doubt that this is a legitimate mode of interpreting a will, by the aid 
 of extrinsic evidence in exposition of the habits and phraseology of the tes- 
 tator." So, where the testator has been accustomed to designate a person by 
 his surname alone,^ or his baptismal name alone,* or a pet name or nickname,^ 
 or even a wrong name,* these names, when appearing in his will, may be 
 explained by proof of his usage.' 
 
 "For like reasons," as stated by Mr. Rbdpibld,' "the same rule would apply 
 to any unusual mode of designating his property, either his real or personal 
 estate ; as, if he should give Jenny, or Fannie, or Old Jim to certain persons, it 
 would be proper to show that the testator called certain animals by those 
 
 1 Ayres v. Weed, 16 Oonn. 290. accustomed to call certain members ol his^ 
 
 2 4 Bi-adf. 163. family, or others, by any soubriquet, such as 
 ' Clayton v. Nugent, 13 Mee. & W. 200. pet names or nicknames, and such names 
 ' Wigi-. on Wills, 139. occur in the will, parol evidence is receiv- 
 « IKedf. on Wills, 630; Andrews©. Thorn- able to show what persons he was accus- 
 
 as, 1 Cox, 235. tomed to designate in this manner." 1 Bedf. 
 
 « Lee V. Pain, 4 Hare, 251. on Wills, 630. 
 
 ' " There is nothing better settled than ' Id. 631. 
 
 that where it appears that the testator w.is 
 
400 THBIK ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Usage to Explain Wills. 
 
 names." Therefore, in the leading case of Byerss v. Wheeler,^ the testator hav- 
 ing given his " back lands " to devisees, it was held proper to inquire what 
 portion of his property he was accustomed to designate by this name. Earlier, 
 in Anstee v. Nelms,' the testator owned a farm in the parish of Doynton. One 
 piece of the land, being part of the farm, and surrounded by land In Doynton, 
 was yet in fact in another parish. He devised all his lands in Doynton to his 
 daughter, and the jury haying found that he had always been accustomed to 
 speak of the whole farm being in Doynton, it was held that the entire estate 
 went, under the will, to the daughter. In Ooblet v. Beechy,' Joseph NoUekens, 
 an eminent sculptor, on the twenty-eighth day of January, 1822, executed the fol- 
 lowing codicil to his will: " Memorandum: That in case of my death, all the 
 marble in the yard, the tools in the shop, bankers, mod., tools for carving, the 
 rasp in the draw with — and the draw in the parlor, shall be the property of A. 
 Goblet." The court referred the matter to a master to ascertain the meaning of 
 the words "bankers " and " mod." The master, acting on the opinion of three 
 sculptors and statuaries, reported that, as used among sculptors, the word 
 "banker" meant a solid piece of wood upon which blocks of marble were 
 placed for the purpose of being carved, and that " mod." meant models, and 
 not modelling-tools, as claimed by the defendants. Vice-Chancellor Shadwbll, 
 on the hearing, said that If, in the judgment of three eminent sculptors, " mod." 
 meant models, he would not consider himself warranted in putting a different 
 interpretation upon the word, and gave a decree in favor of the plaintiff. But 
 an appeal* being taken. Lord Brougham, who was then chancellor, reversed 
 the decree upon another ground, and in a judgment which has been vigorously 
 attacked by Sir James Wigram.* In Kell v. Charmer,^ the testator's will was in 
 these words : " I give and bequeath to my son William the sum of i. x. x.; to 
 my son Kobert Charles the sum of o. x. x." It was shown that the testator in 
 his lifetime had carried on the business of a jeweller, and in the course of his 
 business used certain private marks or symbols to denote prices or sums of 
 money, and according to such system the letters i. x. x. and o. x. x. repre- 
 sented the sums of £100 and £200, respectively; and thereupon the Master 
 of the Rolls ruled that this evidence was admissible to interpret the will. So, 
 what the testator was in the habit of regarding as his " homestead " will explain 
 the word when used by him in his will.' But a custom In Virginia to transfer 
 land by death-bed donation, without a will, has been declared incompetent.' 
 And it is held in Michigan that evidence of a custom among a particular class of 
 settlers to give their farms to their eldest sons is not admissible to establish 
 such a gift in a particular case, where no direct evidence of the gift is given. 
 
 , 1 22 Wend. 162, ante, p. 351. ship's theories on questions of philosophy 
 
 " 1 Hurl. & N. 225. are not more solid than some ot his legal 
 
 s 3 Sim. 24. decisions, he can be regarded us a Bacon 
 
 < Goblet V. Beechey, 2 Russ. & M. 624. only on the ground of being highly experi- 
 
 5 "If," said this distinguished authority mental." Wigr. on Wills (O'Hara), Ul. 
 
 on the Law of Wills, "any reasonable evi- ° 22 Beav. 195. 
 
 dence showed that the word had any mean- ' Hoplcins v. Grimes, 14 Iowa, 73. And 
 
 ing, either as used by the public, by sculp- see Attorney-General v. Dublin, 38 N. H.512. 
 
 tors, or by the testator. Lord Brougham s Westfall v. Singleton, 1 Wash. (Va.) 227. 
 
 ought, it would seem, to have admitted the « Gilman v. Biopelle, 18 Mich. 145. 
 
 evidence, iU res magis valeat. If his lord- 
 
EXPLAINING POLICIES OF INSURANCE. 401 
 
 Marine Insurance. 
 
 § 201. Bvidenco of Usage to explain Words and Phrases In Policies of 
 Insurance. — Where the sense of the words and expressions used in a policy 
 is either aftibiguous or obscure on the face of the instrument, or is made so by 
 proof of extrinsic circumstances, parol evidence is admissible to explain by 
 usage their meaning in a given case. This is the third of Mr. Arnould's rules 
 as to the admission of evidence of usage in the case of marine insurance, and 
 which are cited with approval by subsequent authors.' The rule applies as well 
 to the construction of contracts of fire and life insurance as to those of marine 
 insurance. The words and phrases employed in policies may be obscure in 
 themselves, — as, when they are entirely technical and local, — so as to be quite 
 unintelligible to the generality of persons without explanation. In this case, the 
 Ambiguity as to their meaning arises upon merely reading them as they stand in 
 the instrument ; in other words, is patent on the face of it. So, again, although 
 the words employed may have an ordinary meaning, which is sufficiently intelli- 
 gible to people not engaged in the business to which they relate, yet if they have 
 iilso another meaning when employed by these engaged in that business, and 
 the circumstances of the case show that such secondary or less general sense 
 must have been that In which they were used in the particular instrument whose 
 meaning is sought to be ascertained, parol evidence must be equally resorted 
 to in this, as in the former case, to explain the real meaning of the contract, 
 by showing the sense in which the parties meant it to be understood.^ 
 
 §202. Same — Marine Insurance. — Evidence of usage has been admitted 
 to show that the word "corn" includes every Itind of grain, and also beans 
 and peas,' and malt,* but does not include rice;» that "salt" does not in- 
 clude saltpetre;' that the words "loading off shore" include loading at a 
 bridge pier;' that " skins " include furs; ' that " roots " are limited to such as 
 are perishable in their nature, as beets and other garden roots, and do not 
 include sarsaparilla;" that insurance upon an "outfit" of a whaler covers a 
 a. quarter of the catchings;'" that bundles of rods are considered as "bar- 
 
 ' Angell, May, and others. that in an insurance on outfits, catchings 
 
 ^ Amonld on Ins. 89. And see Coit «. are covered to one-fonrth part of the amount 
 
 Commercial Ins. Co., 7 Johns. 385 ; Sleght ol the outfits. The word ' outfits,' in its 
 
 V. Rhinelander, 1 Johns. 193 ; a. u. 2 Johns, original use, as applying to ships, embraced 
 
 532; Baker v. Ludlow, 2 Johns. Cas. 289; those objects connected with a ship which 
 
 Astor «. Union Ins. Co., 7 Cow. 203. were necessary for the sailing of her, and 
 
 ' Mason ®. Skurray, Park on Ins. 245. without which she would not, in fact, be 
 
 ' Moody V. Surridge, Park on Ins. 245. navigable. It included the sails and rigging, 
 
 ° Scott V. Bonrdillion, 2 Bos. & Pul. N. K. boats, and provisions for the ship's crew; 
 
 214. and it has long since been determined that 
 
 " Journn v. Bonrdieu, Park on Ins. 245. such items enter into the value of the ship, 
 
 ' Johnson v. North- Western, etc., Ins. Co., and are covered by an insurance upon herJ 
 
 39 Wis. 87. 1 Ph. on Ins. (1st ed.) 71, and authorities 
 
 s Astor V. Union Ins. Co., 7 Cow. 203. there cited. But in ships engaged in whal- 
 
 » Coit V. Commercial Ins. Co., 7 Johns. 385 ; ing voyages the word has acquired a much 
 
 Bakers. Ludlow, 2 Johns. Cas. 289. more enlarged signification. It has em- 
 
 ii> MaCT D. Whaling Ins. Co., 9 Mete. 354. braced within it not only the ordinary tackle 
 
 "The question is," said Hubbard, J., and apparel of the ship, and the provisions 
 
 "whether the term ' outfits,' as used in the for a common voyage from port to port, but 
 
 second policy, covers the catchings, agree- the casks and staves, the fishing-gear, and 
 
 ably to the usage which is alleged to exist the stores and clothing necessary for the 
 
 38 
 
402 
 
 THKIK ADMISSIBILITY TO EXPLAIN CUNTKACTS. 
 
 Contracts of Marine Insurance. 
 
 iron;"» that live stock is comprehended within the term "cargo."' In 
 Taylor v. Briggs,' where one of the subjects of a charter-party was cotton in bales. 
 
 successful prosecution of suoli voyages; 
 articles not for sale, like a common outward 
 cargo of a ship, but for consumption and use 
 during a protracted voyage of years, and for 
 the storing of the cargo or catchings to be 
 obtained. These outfits have their value; 
 and they are converted, either indirectly or 
 directly, into cargo, by their consumption 
 and use in procuring the cargo, and by the 
 taking of the casks for the reception of the 
 oil. In consequence of this, a usage has 
 arisen in the adjustment of losses with un- 
 derwriters by which the catchings have 
 been substituted in the place of outfits, to a 
 limited and reasonable extent, and which 
 custom, in New Bedford, — the leading port 
 in the world in the great whale-fishery, — 
 has been introduced into and become a part 
 of the written contract in their policies, to 
 prevent any question as to the binding nat- 
 ure of the usage. ' Outfits ' is a word, then, 
 of originally limited meaniug as applied to 
 different trades and in its application to 
 vessels, but it has acquired an enlarged 
 meaning in the hands of merchants engaged 
 in whaling voyages, adapted to their grow- 
 ing trade; and, as thus used, 'outfits' is a 
 word not so clearly defined and strictly 
 limited in its import, nor is it of that plain 
 and decisive character that we are required 
 necessarily to hold that it is used in policies 
 without reference to an existing custom in 
 this important branch of trade, or that the 
 parties using it intended to confine its appli- 
 cation to the outfits as they existed when the 
 ship left her port of departure, and which 
 were changing their character every day by 
 consumption and use. The contracts of in- 
 surance are inartificial instruments; and the 
 common policy, as used in whaling voyages, 
 is, as to many of its provisions, in nowise 
 applicable to the subject of this particular 
 species of insurance. We are therefore 
 called upon, by the nature of the contract 
 and the character of the extensive trade to 
 which it relates, to give it a liberal construc- 
 tion in order to do justice between parties. 
 And, in view of the subject as presented to 
 us, we are of opinion that such a usage is 
 reasonable, and tliat evidence of the exist- 
 
 ence of it is admissible. Unless the parties 
 shall agree upon the matter, it is to be sub- 
 mitted to a jury to inquire into the existence 
 of such a usage, and whether the parties 
 contracted in reference thereto ; and the in- 
 quiry will be whether the usage is general 
 to ail who are concerned in the trade, or 
 whether it is a local usage and confined to- 
 the ports of the Commonwealth; and if 
 local, whether the merchants and nndei;- 
 writers in Nantucket and Boston are con- 
 versant with it, and practise upon it. And 
 if the jury shall find that such usage is gen- 
 eral, or, if local, is in force among the per- 
 sons engaged in the trade as owners and 
 underwi'iters, in Nantucket and Boston a& 
 well as at New Bedford, and that it enters 
 into the construction of their contracts, 
 where the word ' outfits ' is used, without 
 explanation, as extending to a portion of the 
 catchings, then the policy affected at the 
 Suffolk office will be held to extend to the 
 catchings, in ascertaining the loss to be paid 
 by these defendants. But if the custom is 
 limited to the port of New Bedford, or is not 
 well known or established in Nantucket and 
 Boston, then it cannot be admitted to affect 
 the construction of the defendants' policy, 
 or to lessen the amount of their contributory 
 share of the loss. A question has also been 
 started, and may be necessary to be settled, 
 whether the word 'cargo' includes within 
 its meaning the outfits as well as the catch- 
 ings; and, also, how far the policy at the 
 Ocean office extended to catchings, while 
 the outfits, sufficient in amount to cover the 
 amount at risk, remained on board the ves- 
 sel. These are important questions. The 
 W'ord ' cargo ' is not of such common occur- 
 rence in English policies of insurance as 
 with us. They use, in lieu thereof, the 
 words ' goods and merchandise.' liul 
 'cargo' is a word of a large import, and 
 means the lading of the ship, of whatever it 
 consists ; and we see not, in principle, why 
 it may not cover the outfits, which are goods 
 of value, as well as the 'catchings,' which 
 is the technical word that includes the blub- 
 ber taken on board, the oil, and the caslis 
 But, whether it should be so applied is not 
 
 ' Evans v. Commercial, etc., Ins. Co., 6 E. 130; s. c. 6 Har. & J. 408; 20 Am. Dec. 423; 
 *'• 14 Am. Dec. 289. 
 
 - AUegre e. Maryland Ins. Co., 2 Gill & J. 3 2 Car. & P. 625. See also Gray v. Harper, 
 
 1 Story, B74. 
 
EXPLAINING POLICIKS OV INSUKANCK. 403 
 
 Geogvaphical Terms. 
 
 parol evidence of the mercantile meaning was admitted to show what a " bale " 
 was. In Brough v. Whitmore,^ the custom of the trade that provisions sent out in 
 the ship for the use of the crew should be considered as " furniture," within that 
 word in a policy, was admitte,d, and controlled the decision. So, evidence of usage 
 has been heard to showthat the words " goods, specie, and effects," in a policy, 
 cover a sum of money advanced by the captain for the benefit of the ship, and 
 for which he charges respondentia interest.' In Sleght v. Shinelander," the 
 Supreme Court of New York refused to receive evidence of the commercial 
 meaning of the term "sea letter," in a policy of marine insurance, on the 
 ground that the nature of the document was settled by public treaties and acts 
 of Congress. On appeal, the Court of Errors, while construing the words as 
 meaning a different thing from the meaning put upon them by the court below, 
 and reversing the judgment on this ground, were likewise of opinion that if 
 there had been any doubt or obscurity on the subject, parol testimony should 
 have been admitted to explain it.* And proper evidence of a custom would be 
 admissible to show that the words "whaling voyage" include the taking of 
 sea-elephants on the beaches of islands and coasts, as well as the catching of 
 whales whereever found;" that the word "proceeds" includes the identical 
 goods insured, if brought back on the return voyage ; ' that the term " particular 
 average," does not include expenses which are necessarily incurred in order to 
 save the subject-matter of insurance from a loss for which the insurers would 
 have been liable, and that these are usually allowed under the name of particular 
 charges; ' so, the words "port risk," in a policy, maybe explained.^ So, it was 
 held in one case that the words "sail from St. Domingo in the month of 
 October" were to be understood, when taken in connection with the usage of 
 the trade, as indicating that the ship would not sail until the 25th.' And the 
 phrase, "warranted to depart with convoy," has been literally construed accord- 
 ' ing to the usage among merchants."' 
 
 Likewise, where geographical terms are used in a policy, it may be shown 
 that the meaning put upon them by mercantile men Is different from their com- 
 mon meaning as given in books. Thus, in Uhde v. Walters,^^ decided in 1811, 
 
 free from doubt, because the word ' outfits ' agree, the cause will be sent to a jury, to as- 
 
 is so generally used to express the outward certain the existence ot the custom alleged 
 
 lading, from which it may be reasonably in- by the defendants, and its nature and ex- 
 
 ferred that the word ' cargo ' ia limited by tent, as herein stated." 
 
 the parties to the catchings of the ship. But ' 4 Term Rep. 206. 
 
 on this point we do not now feel called upon = Gregory v. Christie, 3 Doug. 419. 
 
 to express an opinion, as the case may ^ 1 Johns. 193. 
 
 again come before us, when the facts shall * Sleght v. Rhinelander, 2 Johns. 532. 
 
 be more clearly settled by the further agree- ' Child v. Sun Mutual Ins. Co., 3 Sandf. 26. 
 
 ment of the parties or the verdict of a jury. « Dow v. Whelton, 8 VTend. 160. 
 
 We do not see any reason to confine the con- ' Kidston v. Empire Marino Ins. Co., L. 
 
 Btructlon of the policy at the Ocean office to E. 1 C. P. 535. 
 
 the ' outfits,' after there have been catchings » Nelson v. Sun Mutual Ins. Co., 71 N. T. 
 
 obtained, until the outfits, to the amount of 453. 
 
 the sum insured, are exhausted ; otherwise " Chaurand v. Angerstein, Peake N. P. 61 ; 
 
 the plaintiffs, if ne other policy had been Yates ». Duff, 5 Car. & P. 369. 
 
 effected, would have suffered, to a certain '" Lethulier's Case, 2 Salk. 443. And see 
 
 extent, if not wholly, their catchings to re- Robertson v. Frencb, 4 East, 130. 
 
 main unprotected, which surely was not the ^* 3 Camp. Ifl, 
 
 design of the contract. Unless the parties 
 
404 THEIK ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Geographical Terms Iq Marine Policies. 
 
 the policy was from London to any port in the Baltic. The ship was captured 
 while proceeding to Reval, in the Gulf of Finland. On the trial, the plaintiff 
 proposed to call witnesses to prove that the Gulf of Finland is considered by 
 nautical and commercial men as within the Baltic, although the two seas are 
 treated by geographers as separate and distinct. The defendant answered that 
 it might as well be contended that a policy to the Mediterranean would protect 
 the ship in sailing to any port in the Adriatic or Black Sea. But Lord Ellen- 
 BORonGHsaid: "I know not what the effect of the evidence offered maybe, 
 but I think it Is clearly competent for the plaintiff to prove that the Baltic is 
 nomen generate, comprehending, in common understanding, the gulfs and inlets 
 which communicate with the sea laid down as the Baltic in geographical charts. 
 If the Gulf of Finland is to be considered as within the Baltic, the ship was 
 sailing on the voyage insured at the time of the capture, and there can be no 
 objection to admit evidence as to the understood limits of any particular sea." 
 Several witnesses were then examined, who stated that all within the sound 
 was considered as the Baltic; that licenses meant to protect ships to the Gulf of 
 Finland were made out usually to the Baltic. Lord Ellbnborough thought the 
 evidence sufficient to establish the point in question, and the plaintiff had a ver- 
 dict. A year later, in Moxon v. Atkins,^ the policy was at and from Amelia Island 
 to London. There was no port on the island, but a little farther up is Tigre 
 Island, where ships usually stop, and in this case the cargo was loaded. Lord 
 Ellbnbokough said: " The words of the policy cannot be literally understood, 
 for there is no port in Amelia Island where the ship could load. The real ques- 
 tion is, whether there has been a loading at Amelia Island, within the meaning 
 of the parties, when the policy was effected. Strictly and locally, there has been 
 no loading at Amelia Island; but it is possible that in mercantile contracts 
 Amelia Island may denominate a region in which Tigre Island is comprehended. 
 Essequibo has been held for some purposes to be Demerara, although the two 
 settlements are quite distinct. There is the more familiar instance of West- 
 minster being considered in London, the general name for the metropolis, yet 
 we know that in strictness London only comprehends the limits of the city " « 
 Subsequently, in Mobertson v. Clarke,^ under a policy " from Van Diemen's Land 
 to a port or ports of loading in India and the Indianislands," it was held in the 
 Common Pleas that although among geographers Mauritius was deemed an 
 African island, yet parol evidence was admissible to prove that in commercial 
 language it was considered an Indian island. In Grade v. Maryland Insurance 
 Company,^ the admission of evidence of a custom to consider the landin- at the 
 Lazaretto a landing at Leghorn was approved. In Gohb v. Lime Rock Insurance 
 Oompa»3,,5ausage at Boston not to regard the Strait of Northumberland as 
 withm the Gulf of St. Lawrence was held by the Supreme Court of Maine 
 madmissible, but only on the ground that it was a local and not a general 
 usage, wa« not known to the party to be affected, and therefore could not bind 
 him. In an Alabama case, evidence of usage was admitted for the purpose of 
 showing that "the port of New Orleans" embraced the wharves on Lake 
 
 >3Carap.m ^ 8 Oranch, 75. 
 
 - See Mallan v. May, 13 Mee. & W. Sll. 6 53 Me S26 
 
 ' 1 Bing. 445; Robertson ». Money, Evan 
 AM. 75. 
 
EXPLAINING CONTEACT8 OF INSURANCE. 
 
 405 
 
 Fire Policies. 
 
 PontchartraiD as well as the levees on the Mississippi.^ The word " town," as 
 used in a contract, may be shown to mean the town itself and the vicinity.' 
 
 § 203. Same — Plro Policies. — Consort to the rule above stated, that when a 
 word is used in a technical or peculiar sense, as applicable to any trade or 
 branch of business, or to any particular class of people, it is proper to receive 
 evidence of usage to explain and illustrate it, are the following cases: To an 
 inquiry in an application for insurance upon a manufactory, "Are there casks 
 in each loft constantly supplied with water? " the answer was, " There are 
 in each room casks kept constantly full." Held, that evidence was admissible 
 for the assured that among manufacturers the whole of a loft or story appro- 
 priated to a particular department was called " one room," although the same 
 was divided by partitions with doors.^ A policy on a country store covered, 
 among other things, "store-flxtnres." Held, that evidence of a well-settled 
 custom among underwriters and the community generally, by which the terms 
 
 1 Mobile Marine, etc., Ins. Co. V. McMillan, 
 27 Ala. 77. As to the effect of iisage on the 
 meaning oi geographical words, see Fay v. 
 Alliance Ins. Co., 6 Gray, 455 ; *' city of Lon- 
 don," Mallan v. May, 13 Mee. & W. 511; 
 "harbor of Boston," Martin v. Hilton, 9 
 Mete. 371. 
 
 ! Steyer v. Dwyer, 31 Iowa, 20. 
 
 ' Daniels v. Hudson River Ins. Co., 12 
 Cash. 116. "If the plaintiffs intended to 
 conform their answer to the question pro- 
 posed, then it is manifest that In their view 
 the word ' loft ' in the qnesition and ' room ' 
 in the answer would mean the same thing, 
 and the effect of the answer would be that 
 a cask was kept in each loft. This would 
 raise another question: whether the term 
 •loft' would include the basement story, or 
 only the chambers over the basement — the 
 'rooms aloft.' Or did it mean each story? 
 These considerations are, perhaps, not ma- 
 terial, except that they have some tendency 
 to show that the word ' room * was used 
 without any very precise or definite mean- 
 ing. The evidence offered lor the purpose 
 of falsi^ng this representation was that 
 there was in the basement story a partition, 
 setting off a part for a particular purpose, 
 in which no w^ter-cask was kept; that in 
 the next story above there was a small 
 apartment partitioned off, in which there 
 was no water-cask; and in the two stories 
 above, the water-casks stood in the entry- 
 ways by the doors of the main rooms, and 
 not in the main rooms. If the plaintiffs, in 
 answering the interrogatory as put, intended 
 to say that there is a cask of water kept for 
 each loft, or each story, the jury might well 
 find that the representation was true; if 
 they intended to use the word ■ room ' in a 
 
 narrower sense, so as to mean more than 
 one apartment in each loft or story, then it 
 becomes necessary to inquire what was the 
 extent of the word ' room ' as used in this 
 answer. The word is certainly a familiar 
 one in the English languttge, and, as ordi- 
 narily used and construed, as all words must 
 be, by the subject-matter and the context, is 
 not likely to be misunderstood; yet it is 
 not without some considerable varieties of 
 meaning. Apply it to a dwelling-house; 
 and suppose one, in offering a house to be 
 sold or let, should represent that there is a 
 fireplace in every room. Suppose there 
 is a cellar, or an attic, with or without, 
 windows, are they rooms ? Or, suppose a 
 large apartment into which the front door 
 opens, used for the double purpose of an 
 entry and for a sitting-room in warm 
 weather, and furnished lor that purpose, 
 is it af room, within the representation that 
 there is a fireplace in it? Or, suppose 
 above stairs one or more small apartments, 
 capable of being used as a closet or clothes- 
 press, or lor a bed-i-oom, would the repre- 
 sentation be falsified by showing that either 
 of these divisions ol the house had no 
 fireplace in it? The language might be 
 somewhat ambiguous, and requires aid to 
 ascertain its meaning. * * * In the pres- 
 ent case, we are of opinion that there was 
 snflicient uncertainty and ambiguity in the 
 representation in question to waiTaut the 
 introduction of evidence of usage; and it 
 was a question of fact for the jury to decide, 
 whether, according to the true meaning of 
 the language used, the representation was 
 substantially true when made, and sub- 
 stantially complied with afterwards." 
 
406 THEIE ADMISSIBIUTT TO EXPLAIN CONTRACTS. 
 
 Fire Policies. 
 
 "fixtures" and "store-fixtures" were used in Insurance to denote all the 
 movable articles of shops and warehouses which are convenient and necessary 
 for use in the course of trade, was admissible-^ In the application for insur- 
 ance, in answer to the question, "for what purpose the building was used," the 
 plaintiff replied, "Tobacco-pressing; no manufacturing." It appeared that in 
 a shed adjoining the main building tobacco-hogsheads were manufactured, and 
 the company claimed that this was a breach of the warranty and vitiated the 
 policy, ffeld, that the plaintiff might prove that the business of making the 
 hogsheads In which the tobacco was packed was incident to, and appertained to 
 the business of pressing, and by general custom was included, and understood 
 to be included, in the term "tobacco-pressing," without being specially men- 
 tioned. " If such were the fact, there was no false warranty, and it was no more 
 necessary for the plaintiff to state that branch of the business than the other." ' 
 In a policy of insurance against loss or damage by fire, one of the conditions 
 was that the insurer would not be liable for " fire by lightning." Held, that the 
 practice and usage of other insurance companies, restricting their liability to 
 losses occasioned by actual burning by lightning, may be resorted to to show 
 that the insurers, under such a policy, are not liable for the destruction of the 
 house Insured by its being rent and torn to pieces by lightning, without being 
 burnt or consumed.' A building was described in a policy as " a frame house, 
 filled in with brick." Held, that it was competent for the assured to prove a 
 usage as between insurers and assured that a house filled in In front and rear, 
 and supported on the one side by the wall of an adjoining house filled in with 
 brick, and on the other by a brick wall of an adjoining house, was considered 
 as a "frame house, filled in with brick," within the meaning of the policy.* 
 A policy was written on a ship-builder's stock of ship-timber, " contaiued in the 
 yard and buildings therein," bounded by certain streets. Evidence was offered 
 and received to the effect that it was the custom of the owners of ship-yards to 
 keep their stock of timber on the sidewalks and in the streets in the vicinity of 
 their yards, as much so as within the yards. Some of the lumber destroyed was 
 on the sidewalks, partly in the street and partly within the yard, which was in 
 places unfeuced. Held, that the evidence was properly received to show what 
 was the meaning of the terms, " stock of ship-timber in a ship-yard," as used by 
 the parties in the policy, and to define the term "yard," as applied to ship- 
 building.* A policy on a machine-shop stipulated, " a watchman kept on the 
 premises." Held, that evidence of the usage of similar establishments not to 
 keep a watchman constantly, but only during portions of the twenty-four hours, 
 was admissible to construe the meaning of the terms.* The property insured 
 
 I Whitmarsh v. Conway Fire Ins. Co., J6 = Baboock v. Montgomery, etc., Ins. Co.. 6 
 
 Gray, 369. " If," said Chapman, J., " the Barb. 637 ; «. c. 4 N. Y. 3.J6. 
 
 term ' store-flxtures ' is a term of trade com- < Fowler v. JEtna Fire lus. Co., 7 Wend, 
 
 monly used among traders and insurers, and 370; Mead v. North- Western Ins. Co., 7 N. Y. 
 
 is used in euoh a signification as to use any 630. 
 
 or all the articles mentioned as such in the ' Webb v. National Fire Ins. Co., 2 Sandf. 
 
 report, those wore insured by this policy. 497. 
 
 The parol evidence offered on this subject o Crocker v. People's Mutual Ins. Co., 8 
 
 was proper, and ought to have been ad- Cush. 79. And sec Houghton v. Manufao- 
 
 "'s'o- " o. , - turors' Ins. Co., 8 Meto. U4; Poroival o. 
 
 Sims V. State Ins. Co., 47 Mo. 54. Maine Mutual Ins. Co., 33 Me. 242. 
 
EXPLAINING CONTRACTS OF INSURANCE. 407 
 
 Fire Policies. 
 
 ■was described in the application and policy as a "brick dwelling-house and 
 wood-house, * * • occupied for the usual purposes by a tenant." It appeared 
 that the " wood-house " was built at one time, had but one frame, was all under 
 oae roof, and was designed for one building — a wood-house and carriage-house; 
 the wood-room constituted two-thirds or more of the entire building, and was 
 separated from the carriage-room by a loose partition about seven feet high, 
 which extended to the eaves on one side and not so high on the other side, 
 leaving a distance of about seven feet between the top of the partition and the 
 ridge-pole. In an action on the policy, the company set up as a defence a false 
 lepresentation on the part of the assured in stating there was no other building 
 within four rods of the premises insured, claiming that the carriage-house — 
 part of the wood-house — was a separate building, which should have been 
 mentioned. Held, that the testimony of tenants and neighbors^that the building 
 In which the wood-house and carriage-room were had always been commonly 
 known and described as the "wood-house," was admissible.' A policy on a 
 two-story factory, with attic and basement, contained this provision : " Water on 
 each floor, with hose, and a watchman is to be kept on the premises at night." 
 Held, that evidence was proper to show that, according to the usage of the trade, 
 neither the attic nor the basement were considered as " floors." ^ A policy con- 
 tained a provision that it should not include "mills or manufactories of any 
 kind." With the consent of the company, the owner kept hay, straw, produce, 
 «tc., on the premises ; this he afterward gave up, and kept broom-corn, and made 
 brooms by hand. Seld, that evidence of usage was admissible to show that this 
 occupation did not come within the prohibition of "mills and manufactories."' 
 On the other hand, in a New York case, where the house insured was described 
 
 1 White t>. Mutual Fire Ins. Co., 8 Gray, more than a place where things are made. 
 S66. Tou would probably hardly speak of a pho- 
 
 2 New York Belting Co. ». Washington tograph establishment as a manufactory, or 
 Fire Ins. Co., 10 Bbsw. 428. a painter's studio, or a book binder's shop, 
 
 ' Franklin Fire Ins. Co. v. Brook, 57 Pa. or a printing: office. It is undoubtedly true 
 St. 71. " The tenth condition attached to that a bnilding may be insured as a store or 
 the policy," said Strong, J., "in which it is a dwelling-house which may afterwards be 
 -declared that the policy shall not be con- converted into a factory. If it be under 
 strued to extend to mills and manufactories such a policy as these, it ceases to be 
 of any kind, has reference to the character insured. But it by no means follows that 
 of the real estate rather than to the uses the partial use of it for making articles for 
 to which it may be put. The building must use or sale make it a manufactory. The 
 itself be a mill or a manufactory, or it does collocation ol the words in this condition is 
 not come within the tenth article. The fact of considerable weight in determining what 
 that articles are made or manufactured in the parties meant. Not only are the kinds 
 a dwelling-house or a store does not, of of manufacturing business excepted from 
 ■course, make it a ' manufactory,' within the the policy named, but the real estate ex- 
 meaning of this policy. Had clothes been cepted is called ' mills or manufactories.' 
 madein the store, and had a sewing-machine This would seem to indicate what was, in 
 been introduced and worked there, a jury the minds of the parties, mills and mauu- 
 would hardly find that it had become a man- factories ; something known, recognized, 
 ulaotory, and, therefore, no longer insured, called a mill: not merely a place where 
 fe not a manufactory or a factory a building, something might be ground, but what com- 
 the main or principal design or use of which mon usage recognizes as a mill ; a manutac- 
 is to be a place for producing articles as tory: not merely a place where something 
 products of labor ? There is no difficulty in may be made by hand or machinery, but 
 understandingwhat is meant when we speak what, in common understanding, is known 
 of a lactoiy or manufactory. It is something as a factory." 
 
408 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTrS. 
 
 Bills of Lading. 
 
 In the policy as " standing detached," and did, in fact, stand about seven feet 
 from any other building, evidence that the words "standing detached" meant 
 that the subject of insurance should be at least twenty-five feet from another 
 building, was held inadmissible. The phrase was considered not in the least 
 ambiguous, and extrinsic proof could not be allowed to give it a meaning differ- 
 ent from its plain import.* 
 
 § 204. To explain Bills of Ladiner. — A bill of lading, like other receipts, is 
 open to explanation, and the carrier may show that the actual amount which 
 came into his hands is different from that stated;^ and a custom which precludes- 
 the carrier, as between himself and an intermediate consignee, from explaining 
 the bill of lading, and showing any error that may have occurred in stating the 
 quantity, is bad.' Consequently it has been held proper to prove that, according 
 to the usage of the transportation business, the words " quantity guaranteed," 
 in a bill of lading for grain, meant that the bill of lading was conclusive evidence- 
 of the amount of grain to be delivered, and that if it fell short the carrier was to 
 pay for the shortage.* Where a bill of lading recited that certain cotton was 
 shipped on a specified steamboat, it was ruled admissible to show that by the 
 custom of the river, when the river was low, barges were carried in tow, and 
 freight stored, at the option of the carrier, on either the boat or the barge.* 
 And where a railroad company received goods addressed to a point beyond its 
 terminus, and gave a bill of lading for the transportation of the goods to its- 
 terminus, it was held that parol evidence was admissible to prove that there 
 was a custom in such cases to deliver to a connecting carrier, such evidence- 
 not tending to vary or contradict the bill of lading.^ 
 
 So, evidence of usage is admissible to explain a bill of lading, as to the time 
 in which loading is to be done or delivery is to be made — as, for instance, 
 whether the " days " in which the delivery is to be concluded are to be consid- 
 ered as working or running days,' or whether the "rainy days," which are to be 
 excepted, apply to all days on which there is some rain, or only to those days 
 when the rain is sufficient to prevent the loading or imloading of the vessel with 
 safety and convenience.* The meaning of " Derby Line" ' and " their freight," "^ 
 as used in these instruments, has been arrived at by evidence of usage ; and 
 "privilege of reshipping" has also been explained in the same way." In an 
 English case," a majority of the Court of Exchequer held that the terms, in a 
 letter to carriers of goods from their customers, " Please send the marbles not 
 insured," were to be read, " according to the understanding of the language 
 
 1 Hill V. Hibernian Ins. Co., 10 Hnn, 26. ' Higgins v. United States Mail Steamship 
 
 2 WoHe V. Myers, 3 Sandf. 7; Ward v. Co., 3 Blatoht 282; Cocliran „. Ketberg, 3- 
 Whitney, 3 Sandf. 399; Blanchard v. Page, Esp. 121. See Commercial Steamship Co «. 
 8 Gray, 287; Backus v. The Marengo, 6 Boulton, L. R. 10 Q. B. 346. 
 
 McLean, 487 ; Diclierson v. Seelye, 12 Barb. » Ballour v. Wilkins, 9 Cent. L. J. 56. 
 
 99; Bowman „. American Express Co., 21 » Connecticut, etc., R. Co. v. Baxter, 32 
 
 Wis. 152; Lawson on Car., § 116. Vt. 805. 
 
 <! Strong V. Grand Trunk R. Co., 15 Mich. '» Noyes v. Campbell, 29 Vt. 79. 
 
 ^*8. 11 Broadwell v. Butler, 6 McLean, 296. 
 
 < Bissel V. Campbell, 54 N. Y. 853. 1= Peek v. North Staffordshire, etc.. R. Co., 
 
 6 McClure v. Cox, 32 Ala. 617. 10 H. L. Cas. 473. 
 
 " Hooper v. Chicago, etc., R. Co., 27 Wis. 
 81. 
 
EXPLAINING MARITIME CONTKACTS. 409 
 
 Charter-parties. 
 
 between carriers and their customers," and in that light they were interpreted 
 to convey a request to carry the marbles at the owner's rislt. This decision, 
 which was upon the construction of the seventh section of the Railway and Canal 
 Traffic Act,' was, however, reversed in the House of Lords. Where a railroad 
 company gives a receipt for freight, " to be delivered to E. R. agent " at the ter- 
 minus of the road, and the agent deposits it at that place in a warehouse not 
 belonging to the company, evidence of its custom to deposit freight in that ware- 
 hoase is admissible.' And though a bill of lading of cotton, to be carried by 
 river, states the price at which it is to be transported, the carrier is not pre- 
 cluded from showing the existence of a custom on the river to charge lighter- 
 age, in addition to the freight, whenever the tide is so low throughout the 
 season as to prevent cotton-boats from passing shoals.^ 
 
 §205. To explain Charter-Parties and other Maritime Contracts. — Evi- 
 dence of usage has been frequently resorted to to explain charter-parties and 
 maritime contracts of like character* — as, for instance, the terms "freight," 
 " freight measurement," * and " loading in turn," ' as used In such instruments, 
 have been construed thereby. In Birch v. De Peyster,'' an action of assumpsit 
 was brought by the owners of a ship against the captain for the amount of 
 freight received by him. By the contract between the parties, the defendant 
 was to receive a stipulated sum in lieu of " privilege " and "primage." The 
 freight claimed had been earned in respect of goods carried in the cabin, and 
 the principal question was whether the terms of the contract excluded all right 
 on the part of the captain to use the cabin for the carriage of goods on his own 
 account. On the trial, the defendant proposed to give in evidence a conver- 
 sation between the parties before the agreement was entered into, in the course 
 of which it had been expressly stated by the plaintiff that the defendant was to 
 have the use of the cabin entirely to himself; but the plaintiffs contended that 
 no evidence was admissible by way of explanation, except as to the general 
 meaning of the term "privilege," In mercantile understanding. Gibbs, C. J., 
 admitted the evidence, saying: "The distinction wl>ich you take is, that evi- 
 dence may be received to show what the mercantile part of the nation mean by 
 the term ' privilege,' just as you would look into a dictionary in order to 
 ascertain the meaning of a word, and that it must then be taken to have been 
 used by the parties in its mercantile and established sense. But I think that the 
 word ' privilege ' is of so indeterminate a signification that I must receive this 
 evidence. It is certainly evidence, and, in the way in which it is offered, falls 
 within the general current of mercantile understanding, since they had, previous 
 to the agreement, a conversation on the subject of ' privilege.' To this extent it 
 is evidence, if not further; and if the term has been used in different trades in 
 
 ' 17 & 18 Vict., 0. 31. E. Co. V. Northam, 2 Ben. 1 ; Barker v. Bor- 
 
 * Alabama, etc., K. Co. y.Kid(l,29Ala.221; zone, 48 Md. 47i. 
 
 ». 1 35 Ala. 209. ' Peisch v. Dickson, 1 Mason, 11; Gibbon 
 
 ' Andrews v. Roach, 3 Ala. 590. v. Young, 2 J. B. Moo. 224. 
 
 ' Robertsons. Wait, 8 Exch. 299; Phillips • Robertson i;. Jackson, 2 0. B. 413 ; Schultz 
 V. Eriiu'd, 1 Hurl. & N. 21; Bottomley v. ».Iiicdeman,14C. B.38; Hudson v. Clement- 
 Forbes, 5 Blng. N. C. 121 ; Ogden v. Parsons, son, 18 C. B. 213. 
 23 How. i67 ; Norden Steamship Co. v. Demp- ' 1 Stark. N. P. 210. 
 sey, h. E. 1 0. P. Div. 654 ; Philadelphia, etc., 
 
410 THEIR ADMISSIBILITY TO EXPLAIN CONTRACTS. 
 
 Charter-parties. 
 
 different ways, the conversation is evidence to show in what sense it was used 
 on the present occasion." 
 
 In the case of Browne v. Byme,^ which was an action for freight by a ship- 
 owner against the indorsee of a bill of lading, to whom goods had been delivered 
 at Liverpool, and who had accepted them, the bill of lading making them 
 deliverable, " he paying freight for them five-eighths of a penny sterling per 
 pound, with £6 per cent primage and average accustomed," It was held that 
 evidence was admissible that by the custom of Liverpool the ship-owner was 
 entitled to a deduction of three months' discount from the freight, though such 
 custom applied only to goods coming from ports in the Southern States of 
 America. "Here," said Coleridge, J., "the contract is to pay freight on 
 delivery, at a certain rate per pound. Is it inconsistent with this to allege that 
 by the custom the ship-owner, on payment, is bound to allow three months' dis- 
 count ? We think not. The written contract expressly settles the rate of payment. 
 The custom does not set this aside ; indeed, it adopts it as that upon which it is 
 to act, by establishing a claim for allowance of discount upon freight to be paid 
 after that rate. The consignee undertakes to pay freight on delivery after that 
 rate ; the ship-owner undertakes to allow three months' discount on freight paid 
 after that rate. The latter contract is dependent on the former, but is not repug- 
 nant to it. If the bill of lading had expressed — or if, from the language of it, 
 the intention of the parties could have been collected — that the freight, at the 
 specified rates, should be paid free from all deductions, customary or otherwise, 
 then it would have been repugnant to it to set up the custom, and the case would 
 have been brought within the restriction mentioned above. * * * But the 
 contract settles the rate of freight; whether or not discount is to be allowed on 
 the payment, it leaves open, and to that the custom applies." So, where, by a 
 bill of lading of wool from Odessa, freight was to be paid in London, on delivery, 
 at the rate of " 80s per cwt., gross weight, tallow and other goods, and grain or 
 seed in proportion, as per London-Baltic printed rates," it was held that extrinsic 
 evidence was admissible to show that by the usage of the trade the meaning of 
 the bill of lading was, that 80s per hundred-weight of tallow was to be taken as 
 the standard by which the rate of freight on all other goods was to be measured.' 
 In another case, the facts were that by charter-party the defendant agreed to 
 load on board a vessel at Trinidad "a full and complete cargo of sugar, 
 molasses, „, other produce." It appeared that it was the custom at Trinidad 
 to load sugar in hogsheads and molasses in puncheons, in which mode they 
 were carried more conveniently, and with less loss to the merchant, and that a 
 full and complete cargo of sugar and molasses meant a cargo so packed. It was 
 held, both in the Court of Exchequer and Exchequer Chamber, that the custom 
 was admissible in evidence, for it was applicable to such a charter-party, and 
 did not control, but only explained the contract, which should be construed with 
 reference to the usage at the port of lading." In the Court of Exchequer, Aldbk- 
 80N, B., said: "It is not admissible if it contradicts the charter-party itself. 
 The charter-party is the contract, and the only contract, between the parties. No 
 
 » 8 El. & Bl. 703 ; 18 Jur. 700. See the com- ^ Russian Steam Nav. Co. v. Silva, 13 0. B. 
 
 ments on this case in Cuthbert v. Gumming, (n. s.) 610. 
 
 10 Exch. 809. 8 Cuthbert v. Gumming, 10 Exch. 809; 11 
 
 Exoh. 405. 
 
EXPLAINING MAEITIMJE CONTRACTS. 411 
 
 Charter-parties. 
 
 evidence can be given to contradict or alter its effect; but then its effect must be 
 clear, from the wording of the document itself. There is a perfect right to 
 explain the contract and show what it really means, according to the words 
 used by the parties. . It may be shown that ' a full and complete cargo of sugar 
 and molasses ' means, in truth, a full and complete cargo of sugar and molasses 
 packed in the ordinary way in which sugar and molasses are packed to be car- 
 ried. That was, in fact, the evidence received. It was not evidence to alter or 
 control the contract, but to show what the contract really was." By a charter- 
 party it was agreed between the plaintiff, a ship-owner, and the defendants, 
 merchants at Manchester, that the plaintiff's ship should sail to Bombay and 
 there load a cargo of cotton, and proceed with it to Liverpool, and " deliver the 
 same, on being paid freight at the rate of 75s per ton of fifty cubic feet delivered, 
 the freight to be paid on right delivery of the cargo." The ship sailed to Bom- 
 bay and received a cargo of cotton, which, previous to being loaded, had been 
 subjected, in accorda^nce with the usual practice, to a high hydraulic pressure, so 
 as to reduce its compass. On being landed at Liverpool the cotton expanded, 
 and the plaintiff claimed freight on its measurement when delivered, and not 
 when shipped. In the Court of Exchequer it was held that evidence that it was 
 the custom of the Bombay trade to pay freight for cotton goods, under charter- 
 parties similarly worded, on the measurement of the goods at the port of ship- 
 ment, was admissible to explain the contract.' Where it was stipulated in a 
 charter-party that the ship should be unloaded, weather permitting, at a certain 
 rate per diem, to reckon from the time of the vessel being ready to unload, and 
 " in turn to deliver," it was held that the charterers had a right to prove tliat 
 the contract was entered into with reference to a known and recognized use of 
 the words, "in turn to deliver," among persons conversant in the trade.' So, in 
 an action upon a charter-party for freight upon goods shipped at Bombay for 
 London, stating that cotton was to be " calculated at five cubic feet per ton," a 
 usage was held admissible to prove that the measurement was to be calculated 
 when the cotton was taken from a screw at Bombay, though it appeared that it 
 afterwards expanded considerably before it was put on board, and that it would 
 have given a third measurement after it had been unloaded.' 
 
 1 Buckle V. Knoop, L. R. 2 Exch. 125. » Bottomley v. Forbes, 6 Scott, 816 6 Bing. 
 
 « Kobertson v. Jackson, 2 0. B. 412 ; Liede- N. 0. 121. 
 man v. Scbultz, 14 C. B. 38. 
 
CHAPTEE V. 
 
 ON THEIR INADMISSIBILITY WHEN IN CONFLICT WITH 
 CONTRACTS, STATUTES, OR LAWS. 
 
 Illustrative: Cases: — 
 
 29. Blackett v. Boyal Exchange Assurance Company. — Usages con- 
 
 tradicting terms of written contracts inadmissible. 
 
 30. Brown v. Foster. — Usages in conflict with express agreements 
 
 inadmissible. 
 
 31. Noble V. Durell. — Customs contrary to statutes bad. 
 
 32. Barnard v. Kellogg. — Usages in conflict with rules of law inad- 
 
 missible. 
 
 33. Baisin v. Clark. — Usages in conflict with rules of public policy 
 
 Illegal. 
 
 Notes : § 206. Usages inadmissible when repugnant to express contracts. 
 
 207. Usages repugnant to express contracts — Carrier and customer. 
 
 208. Same — Insurance policies. 
 
 209. Same — Landlord and tenant. 
 
 210. Same — Contracts of hiring. 
 
 211. Same — Contracts for work and labor. 
 
 212. Same — Principal and agent. 
 
 213. Same — Bankers and brokers — Bills and notes. 
 
 214. Same — Vendor and purchaser. 
 
 215. Same — Miscellaneous. 
 
 216. The effect of statutes on usages and customs. 
 
 217. Words defined by act of Parliament — Contrary usages void. 
 
 218. Statutes as to oflncers' duties — Inconsistent usages. 
 
 219. Statutes prohibiting usury — Contrary usages. 
 
 220. Statutes as to shipping-articles and carriei's — Customs. 
 
 221. Miscellaneous statutes and repugnant usagus. 
 
 222. Statutory exemptions cannot be waived by usage. 
 228. Statutes may be construed by usage. 
 
 224. Municipal charters and powers as affected by usage. 
 
 225. Customs and usages not inadmissible because in conflict with 
 
 common-law rules. 
 
 226. Contradictory expressions of some courts on this subject. 
 
 227. Same — Conflicting decisions. 
 
 228. Banks and banking — Usages against legal rules admitted. 
 
 229. Same — Usages against legal rules rejected. 
 
 230. Common carriers — Usages in conflict with rules of law admitted. 
 
 231. Same — Usages in conflict with rules of law rejected. 
 
 232. Corporations — Usages against common-law rules admitted. 
 (412) 
 
USAGES AGAINST WRITTEN CONTRACTS. 413 
 
 Illustrative Cases. 
 
 Notes: § 233. Insurance — Usages in conflict with legal rules admitted. 
 
 234. Same — Usages in conflict with legal rules rejected. 
 
 235. Landlord and tenant — Customs against law admitted. 
 
 236. Contracts for personal services — Customs against law admitted. 
 
 237. Same — Customs against law rejected. 
 
 238. Partnership — Usages against legal rules admitted. 
 
 239. Principal and agent — Usages in conflict with rules of law admit- 
 
 ted. 
 
 240. Same — Usages in conflict with rules of law rejected. 
 
 241. "Vendor and purchaser — Usages against legal rules admitted. 
 
 242. Same — Usages against legal rules rejected. 
 
 243. Miscellaneous — Usages contradicting rules of law admitted. 
 
 244. Same — Usages contradicting rules of law rejected. 
 
 245. The necessity for reviewing the contradictory cases. 
 
 246. The facts and opinions of the judges in the above cases. 
 
 247. Same — The above cases examined. 
 
 248. The meaning of the rule that a usage must not conflict vrith the 
 
 law. 
 
 USAGES CONTRADICTING TERMS OP WRITTEN CONTRACTS IN- 
 ADMISSIBLE. 
 
 Blackett V. Royal Exchange Assurance Company.* 
 In the Englisli Qourt of Exchequer, Hilary Term, 1832. 
 
 Hon. John Singleton, Baron Lyndhurst, Lord Chief Baron. 
 Sir John Bayley, Kt., 
 
 William Garrow, Kt., 
 John Vaughan, Kt., 
 William Boll and, Kt., 
 John Gurnby, Kt., 
 
 Barons. 
 
 In an action on a policy of insurance on a ship, her tacMe, apparel, boati and other fnmi- 
 tnre, CTidence of a usage that boats slung on the outside of the ship, on the quarter, are 
 not protected is inadmissible, as contradicting the express terms of the contract. 
 
 Covenant on a policy of assurance at and from London to Calcutta 
 on the ship Thames, her tackle, apparel, ordnance, munition, boat, and 
 other furniture, in the usual form, with the memorandum, " Free from 
 average, under £3 per cent, unless general." 
 
 At the trial before Vaughan, B., at the London Sittings, the plain- 
 tiffs having proved the loss of a boat, which, with other damage subse- 
 quently incurred by stress of weather, amounted to more than £3 per 
 
 • Reported 2 Oromp. & J. 244 ; 2 Tyrw. ?86. 
 
414 WHKN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Blackett v. Royal Exchange Assurance Company. 
 
 cent, the defendants offered evidence of a usage that boats slung upo» 
 the outside of the ship, on the quarter, were not protected by the policy. 
 It had been proved on the part of the plaintiffs that such slinging was 
 proper and necessary in voyages of the description insured against. 
 The learned baron was of opinion that such evidence of usage was inad- 
 missible, and he accordingly rejected it. 
 
 In Michaelmas Term, the Attorney- General obtained a rule accord- 
 ingly, citing Pelly v. Royal Exchange Assurance Company, i 
 
 )S[pa»i&ie, Serjt., and Maule showed cause. — The evidence of usage 
 was properly rejected. The words " boat," etc., are express, unequivo- 
 cal words, and evidence of usage was clearly inadmissible to contradicit 
 their import.** If parol evidence had been received in this case, it 
 would have been received to vary an express, unambiguous, written 
 contract. It was proved at the trial that the boat was properly slung 
 and that it would have been improper if it had not been so slung. 
 Indeed, even if it had been improperly stowed, negligence in that 
 respect on the part of the master would have furnished no defence. It 
 would be extremely dangerous to admit, on such a question, evidence of 
 a usage at Lloyd's, which only amounts to a usage not to pay, a species 
 of prescription de non solvendo. 
 
 The Attorney- General, Campbell, and Follett, contra. — Usage may be 
 resorted to for the purpose of getting at the meaning of words of this 
 description. The evidence was offered to show that the general usage 
 of trade, and particularly at Lloyd's, was that the underwriters did not 
 pay on the loss of boats slung over the quarters. Such an universal 
 usage showed the understanding of the parties, and what they had in 
 their contemplation. Mercantile contracts are always to be construed 
 according to the meaning in which they are understood by mercantile 
 men. Evidence of usage has been admitted to prove that goods stowed 
 on deck were not within a general policy on goods. So, in Gabay v. 
 Lloyd,^ evidence of a usage was admissible to explain the ambiguous 
 meaning of the word " mortality," a wan-anty against which had been 
 held, in Lawrence v. Aberdein,* not to extend to a case where animals 
 died in consequence of the agitation of a ship in a storm. It is true 
 that in Gabay v. Lloyd the evidence of usage was unsuccessfully offered, 
 but it was admitted for the purpose of showing (if it had been strong 
 enough to do so) that the manner in which the animals perished was 
 
 1 1 Burr. 341. s 5 Barn. & Cress. 797 ; 5 Dears. A B. C. 0. 
 
 2 Parkinson v. Collier, Park on Ins. 416; 641. 
 
 1 Ph. on Ev. (6th ed.) 639. 4 g Barn. & Adol. 107. 
 
USAGES AUAINST WRITTEN CONTKACTS. 415 
 
 Illustrative Cases. 
 
 not such a loss as the policy contemplated, and that the underwriters 
 did not pay such losses. 
 
 In the last of the cases on the subject of goods stowed on deck, the 
 question was not as to the propriety of their being stowed there, but 
 whether, being so stowed, they were protected by the policy, in which 
 they were not specifically named. Evidence of usage was admitted to 
 show that the underwriters must have been aware of the practice of 
 stowing goods of the description in question on deck, and the proof 
 that they were usually stowed on deck was considered as tantamount to 
 proof that the underwriters were aware of it. In Palmer v. Blackburn,^ 
 evidence of the usage of settUng the loss on a poUcy on freight was 
 admitted. 
 
 Lord Lyndhukst, C. B., now deUvered the judgment of the court. 
 
 There were two questions in this ease : one, whether parol evidence of 
 a usage was admissible to show that for boats on the outside of the 
 ship, slung upon the quarter, underwriters never paid ; the other, upon 
 the construction of the clause, " Free from average, under £3 per cent," 
 whether the underwriter is answerable for every instance of damage, 
 however small, if the aggregate in toto amount to £3 per cent, or 
 whether each instance where the damage it occasions can be ascertained, 
 and is under £3 per cent, is to be excluded ; and we are against the 
 defendants upon both. The policy is in the usual form as to ship and 
 goods, and, as far as regards the ship, imports to be upon the ship 
 (that is, the body), tackle, apparel, ordnance, munition, boat, and 
 other furniture of the ship called the Thames. There is no exception ; 
 and the policy is, therefore, upon the face of it, upon the whole ship, on 
 all her furniture, and on all her apparel. It was in evidence in the 
 cause, and admitted upon the argument, that upon such voyage as that 
 insured, ships invariably carry a boat in the place in which this boat 
 was cai-ried, and slung as this boat was slung ; and that the ship would 
 not be properly furnished or equipped unless it had a boat in that place, 
 and so slung. The objection, then, to the parol evidence is, that it was 
 not to expMn any ambiguous words in the policy, — any words which 
 might admit of doubt, — nor to introduce matter upon which the policy 
 was silent, but was at direct variance with the words of the policy, and 
 in plain opposition to the language it used ; that, whereas the policy 
 imported to be upon the ship, fui-niture, and apparel generally, the 
 usage is to say that it is not upon all the furniture and apparel, but 
 
 1 Bing. 61. 
 
416 WHEN IN CONFLICT WITH CONTKACT8, ETC. 
 
 Blackett v. Royal Exchange Assurance Company. 
 
 upon part only, excluding the boat. Usage may be admissible to explain 
 what is doubtful ; it is never admissible to contradict what is plain. The 
 cases which are collected in 1 Phillips on Evidence ^ and StarJeie on Evi- 
 dence^ clearly establish this position; and a reference is made to the 
 same subject in the second volume of Mr. PHnxiPs' book.' The author- 
 ity referred to in the argument, as to goods lashed upon the deck, 
 seems to be plainly distinguishable, and to proceed upon a different 
 principle. On an insurance upon goods, the underwriter is entitled, in 
 general, to expect that they shall be carried in that part of the ship 
 usually appropriated to the stowage of goods wliich ought not to be 
 placed in the ordinary stowage ; but, in a more perilous situation, he 
 ought to be apprised either of the nature of the goods or of the part 
 of the ship in which they are to be put. If he is left to suppose that 
 they are ordinary goods, he will naturally suppose they will be placed 
 where ordinary goods are placed, and that they wiU incur the hazard 
 only of ordinary goods ; and if he were to be made answerable for 
 extraordinary peril, he would be answerable for a peril he had not con- 
 templated, and for which he had not received an adequate compen- 
 sation. This, as it seems to us, is the true principle upon which 
 evidence of usage is admitted as to goods lashed upon deck. They 
 are not in the part of the ship where goods are usually carried ; they 
 are in more than usual peril ; and a usage that they are not covered 
 by an ordinary policy upon goods, but that they require a distinct 
 explanation to the underwriter of the part of the ship in which they are 
 to be carried, or (where that will imply the same information) of the 
 nature of the goods, is not at variance with any part of the policy, is 
 essential to that information which the underwriter ought to receive to 
 enable him to estimate the risk and calculate the premiums, and is a 
 portion of that fairness which ought to be rigidly observed upon all 
 these contracts. The policy is upon goods generally, and the usage 
 explains what description of goods is intended, viz. : goods of ordinary, 
 not of extraordinary danger. 
 
 We are therefore of opinion that the evidence of usage was properly 
 rejected. 
 
 Rule discJiarged. 
 
 1 Pages 553-559. » Pages 1032-1038. a Pages 36, 37. 
 
USAGES AGAINST EXI>K£SS AGBEEMENTS. 417 
 
 Illustrative Cases. 
 
 30. USAGES IN CONFLICT VTTTH EXPRESS AGBEEMENTS INADMIS- 
 SIBLE. 
 
 Bkown V. Foster.* 
 
 In the Supreme Judicial Court of Massachusetts, September Term, 1873. 
 
 Hon. Horace Gray, OMef Justice. 
 
 " John Wells, 
 
 *' Jambs D. Colt, 
 
 " Seth Ames, 
 
 " Marcus Morton, 
 
 " William C. Endicott, 
 
 " Charles Devbns, Jr., 
 
 Associate Justices. 
 
 A. agreed to make B. a " satisfactory " suit of clothes. A. afterwards delivered the clothes 
 toB., but B. returned them to A, with a notice that they did not fit, and were unsatis- 
 factory. In a suit by A. against B. for the price: held, that evidence that a custom 
 existed among tailors of having garments tried on after they were finished, and then 
 making any alterations that might be necessary to mate them fit, was inadmissible" 
 because it contradicted the terms of an express contract. 
 
 Contract to recover the price of a suit of clothes. 
 
 At the trial, in the Central District Court of Worcester, the defendant 
 contended, and there was evidence tending to show, that the clothes 
 were to be made and delivered to the defendant in North Brookfield, 
 on or before a speciiied day, and that they were to be made to the satis- 
 faction of the defendant. 
 
 It was agreed that the clothes were delivered on the evening of the 
 day specified, which was Saturday, and that on the following Monday 
 the defendant returned them to the plaintiff by the same person who 
 delivered them, with written notice that the clothes did not fit, were 
 unsatisfactory, and were not accepted. 
 
 The defendant offered evidence that the clothes did not fit him, and 
 that they were not made in the manner and form agreed upon. WhUe 
 the defendant was testifying, the plaintiff produced the clothes in court, 
 and requested the defendant to try them on in the presence of the jury. 
 The defendant assented, and having put them on, wore them in the 
 presence of the court and jury. The plaintiff then called several tailors 
 as experts, who testified that the clothes needed some alterations before 
 they could be called a good fit, but that such alterations could be easily 
 made without injury to them. He also offered evidence that he wrote 
 
 * Reported 113 Mass. 136. 
 27 
 
418 WUKN IN CONFLICT WITH CONTKACTb, ETC. 
 
 Brown v. Foster. 
 
 a letter to the defendant the same day the clothes were returned, in 
 ■which the following language was used: " Can't you come and let us 
 see what the trouble with the fit of your clothes is? From what you 
 say about the coat, we think we could remedy that ; and we could make 
 another vest if necessary, and coat too." To this letter the defendant 
 replied that the clothes were unsatisfactory to him as they were, and that 
 he would not accept them after they had been worked over and botched 
 up, and refused to allow the plaintiff to make a new suit, or to accept 
 any alterations to the suit already made. 
 
 There was evidence that the defendant came to the plaintiff's store 
 soon after the clothes were returned, and the plaintiff asked him to try 
 them on, to see what alterations, if any, were necessary to make them 
 fit ; this the defendant refused to do. 
 
 There was also evidence to show that a custom existed among tailors 
 of having garments tried on after they were finished, and then making 
 any alterations which might be necessary to make them fit. 
 
 The defendant asked the court to give the following instructions to 
 the jury : — 
 
 "1. If you find that the plaintiff agreed to make the clothes in ques- 
 tion to the satisfaction of the defendant, and failed so to do, then the 
 plaintiff cannnot maintain this action, and you will return a verdict for 
 the defendant. 
 
 "2. If you find that the plaintiff agreed to deliver the clothes on or 
 before a specified time, made up in the manner and form agreed upon, 
 and failed so to do, then the defendant was under no obligation to 
 accept them, and you wiU return a verdict in his favor." 
 
 The court refused to give the instructions in the form prayed for, but, 
 after giving instructions upon the other points raised, to which no objec- 
 tions were made, instructed the jury as follows : — 
 
 ' ' The plaintiff was bound to make the clothes of the material ordered, 
 in a workman-like manner, and to deliver them at the time agreed upon 
 by the parties. If the plaintiff agreed to make the clothes to the satisfac- 
 tion of the defendant, he was bound to do so, with these qualifications : 
 If, when the clothes were delivered, there were defects in the fit of them, 
 such as are liable to occur in first-class tailoring establishments, but 
 such as could be easily remedied, and a custom among tailors has been 
 proved to remedy such defects when they occur, the plaintiff was 
 entitled to a reasonable opportunity therefor ; and if he was willing, and 
 offered to remedy said defects, and the defendant refused to allow him 
 to do so, the plaintiff is entitled to recover, if the other facts in the 
 case are proved." 
 
USAGES AOAIM8X EXPRESS AGREEMENTS. 41& 
 
 Illustrative Cases. 
 
 The jury returned a verdict for the plaintiff, and the defendant 
 excepted. 
 
 B. W. Potter and G. H. Ball, for the defendant ; A. Thayer, for the 
 plaintiff. 
 
 Devens, J. — There was evidence at the trial to show that the con- 
 tract between the parties was an express contract, and by the terms of 
 it-the plaintiff agreed to make and deliver to the defendant, upon a day 
 certain, a suit of clothes, which were to be made to the satisfaction of 
 the defendant. The clothes were made, and delivered upon the day 
 specified, but were not to the satisfaction of the defendant, who de- 
 clined to accept, and promptly returned the same. If the plaintiff saw 
 fit to do work upon articles for the defendant, and to furnish materials 
 therefor, contracting that the articles, when manufactured, should be 
 satisfactory to the defendant, he can recover only upon the contract as 
 it was made ; and even if the articles furnished by him were such that 
 the other party ought to have been satisfied with them, it was yet in the 
 power of the other to reject them as unsatisfactory. It is not for any 
 one else to decide whether a refusal to accept is or is not reasonable, 
 when the contract permits the defendant to decide himself whether the 
 articles furnished are to his satisfaction. Although the compensation of 
 the plaintiff for valuable service and materials may thus be dependent 
 upon the caprice of another, who unreasonably refuses to accept the 
 articles manufactured, yet he cannot be relieved from the contract into 
 which he has voluntarily entered. ' 
 
 When an express contract, like that shown in the present case, was 
 proved to have been made between parties, it was not competent to con- 
 trol it by evidence of a usage. It may be that the very object of the 
 express contract was to avoid the effect of such usage, and no evidence 
 of usage can be admitted to contradict the terms of a contract, or con- 
 trol its legal interpretation and effect.^ The evidence admitted was of 
 this description. 
 
 Exceptions sustained. 
 
 ' MeOarren v. McNulty, 7 Gray, 139. " Dickinson ». Gay, 7 Allen, 29, 31. 
 
420 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Noble V. Durell. 
 
 31. customs contrary to statutes bad. 
 
 Noble v. Dukell.* 
 
 In the Court of King's Bench, May, 1789. 
 
 Et. Hon. Lloyd, Lord Kbnyon, Lord Chief Justice. 
 Sir WiLMAM Henry Ashhurst, Kt., \ 
 
 " Francis Bullbk, Bart., > Judges. 
 
 " Nash Gkose, Kt., ) 
 
 Where a statute declares that every pound of butter shall weigh xixteen ounces, a custom 
 that every pound of butter sold" in a particular market-town shall weigh eighteen 
 ounces is bad. 
 
 This was an action of trespass for taking the plaintiff's butter. The 
 defendants, in their plea, after stating that Southampton was a corpora- 
 tion by prescription, and that they annually held a court-Ieet or view of 
 frankpledge, at which a jury is sworn and continues in office till the next 
 court, justified as to some of the jury taking the butter under the follow- 
 ing custom : " That every pound of butter exposed to sale in the said 
 markets of the said town, within the said town, shoiild be, and ought 
 to be, of the weight of eighteen ounces," alleging that the butter in ques- 
 tion weighed more than sixteen, but less than eighteen ounces to the 
 pound. To this plea there was a general demurrer and rejoinder. 
 
 Qibbs, in support of the demurrer, insisted that the custom could not 
 be supported, because it was against the law of the land. There are 
 several statutes which direct that there shall be only one weight 
 throughout the kingdom, i And the 11 Hen. VII., c. 4, directs that 
 the knights, etc., shall cause to be delivered one of every weight and 
 measure which the king had caused to be made of brass, according to 
 the standard in the Exchequer, to certain towns therein mentioned, of 
 which Southampton is one. Those statutes meant that there should be 
 an uniformity of weight, for at that time there was a difference between 
 things sold by troy and avoirdupois weight.^ The statute 13 & 14 
 Car. II., c. 26, after reciting that frauds had been practised in selling 
 butter under weight, directs that every kilderkin shall contain one 
 hundred and twelve pounds, every pound containing sixteen ounces. 
 Now, this custom attempts to set up a particular weight for Southamp- 
 ton ; but a custom against an act of Pai-liament cannot be supported.' 
 
 * Reported S Term Hep. 271. 
 
 31 Edw. HI., St. 1, c. 2; 13 Rich. II., c. 9, = Dalt. Just. 248, c. 112; Stat. 27 Edw. III.' 
 
 15 Rich. II., c. 4; 8 Hen. VI., 0. 5; II Hen. st. 2, c. 10; 2 Rich. II., st. 1, 0. 1; 4 Inst. 273. 
 VII., ,j. 4 ; 12 Hen. VII,, c. 5. a Grisling i>. Wood, Cro. Elil. 85. 
 
CUSTOMS CONTBAKT TO STATUTES. 421 
 
 Illustrative Cases. 
 
 Here the custom requires that a pound shall weigh more than a pound, 
 which leaves untouched a question respecting which some doubt has 
 been entertained : whether a custom that butter shall be sold in lumps of 
 a certain weight is good. 
 
 Burrough, contra. — The object of weights and measures is that there 
 shall be one certain and known weight ; and it is as convenient to the 
 inhabitants of a particular town to have a pound to consist of eighteen 
 as of sixteen ounces. This is a customary weight, and not originally 
 introduced by statute. It is said, indeed, in Magna Charta that there 
 shall be one weight and one measure, but it does not specify what that 
 weight or measure shall be; it leaves the matter as it stood before. 
 Therefore, a custom which existed before of a particulai- weight was not 
 done away by that statute. In the case of ale, corn, and some other 
 things, there is reference to the weights and measures in London, but 
 not so in the case of butter. The statute tractatus de penderitits et 
 mensuris (which must have been passed as early as the time of Edward 
 I.,i because Fleta^ mentions it in almost the same words) is the first 
 statute that speaks of troy weight. But it is not pretended that butter 
 was ever bought or sold by troy weight. "And notwithstanding it is 
 directed by Magna Charta, and the several statutes cited, that there 
 shall be but one weight, there always have been, and still are two Idnds 
 of weights used in England, and both warrantable, the one by law and 
 the other by custom, yet confirmed also by statute." ^ This, then, may 
 be supported as a customary weight. A custom may be set up in 
 opposition to the common law, or even statute, where it is an aiBrmative 
 act. " There is a diversity between an act of Parliament in the negative 
 and in the aiBrmative, for an aflBrmative act doth not take away a cus- 
 tom."* So, by 27 Hen. VI., c. 5, a fair or market shall not be held 
 on a Sunday, upon a forfeiture of all goods sold to the lord of the 
 franchise. "And yet a prescription to hold a fair on the 29th of Sep- 
 tember is good, though it may be on a Sunday ; for a fair on that day is 
 not void, though the goods then sold shall be forfeited by the 27 
 Hen. VI., c. 5.« It is enacted by the statute 27 Edw. III., st. 2, c. 10, 
 that there shall be but one weight, etc., and it speaks of avoirdupois 
 weight, but it does not say what the avoirdupois weight shall be ; and 
 that statute was passed to prevent a particular kind of fraud practised 
 by buying with one weight and seUing with another. With respect to 
 the statute 13 & 14 Car. II., c. 26, that only applies to butter sold 
 
 1 81 Edw. I. * Co. Lit. 116 a. 
 
 J Lib. 2, c. 12. ' Com. Dig., tit. " Market," D; Oro. Eliz. 
 
 ' Dalt. Just., c. 112 ; 2 Shaw, 36. 485. 
 
422 AVHIiN IN CONFLICT WITH CONTUACTS, ETC. 
 
 Noble V. Durell. 
 
 by the wholesale, for it directs that every kilderkin of butter shall eon- 
 tain one hundred and twelve pounds, every pound containing sixteen 
 ounces. It is of importance that this custom should be supported, 
 since it may affect other customary rights in several parts of the, 
 kingdom where butter is sold by the yard or pint. But, even supposing 
 that the statutes on this subject destroyed aU the customs, ■ stUl the 
 plaintiff should have replied, that in point of fact the weights were sent 
 to Southampton as directed by the 11 Hen. VII., c. 4; for, till they 
 were sent to the different towns there enumerated, the old customs were 
 in force. In Heaton v. Ashdown,'^ where, to an action of trespass for 
 breaking and entering the plaintiff's close, etc., the defendant pleaded a 
 prescriptive right of common on the place in question for cattle, etc., ex- 
 cept such parts of the said close where the plaintiff, and those whose estate 
 he had, had immemoriaUy cut the underwood there growing, and had 
 enclosed such parts thereof with a fence to prevent the future growth of 
 the wood for three successive years next after such cutting down, etc. ; 
 and issue thereon, a verdict had been found for the defendant, a motion 
 was then made to enter up judgment for the plaintiff, on the ground that 
 the prescription was bad, as setting up a right contrary to the provisions 
 of the statute 35 Hen. VIII., c. 17, sect. 7, that statute having directed 
 that woods, when cut down, should be enclosed for seven years (and 
 enlarged by 13 Eliz., c. 25, to nine years). To this it was answered, 
 on the part of the defendant, . that in the ease of common woods 
 the statute prescribes a particular mode of enclosing and cutting, 
 and that it was necessary for the plaintiff, if he meant to avail himself 
 of the statute, to have shown by his replication that he had acted con- 
 formably to the directions of the statute, and that the statute had left 
 the general right of common upon the same footing as before, and con- 
 sequently that the prescription was rightly pleaded. And the court 
 being of this opinion, discharged the rule. 
 
 Lord Kenton, C. J. (stopping Oibhs, in reply). —In deciding this 
 question^ I wish not to be understood to say that a custom may not pre- 
 vail that butter shall be sold in lumps or yards, containing any given 
 number of ounces ; but the question now before the court is, whether a 
 custom in Southampton that a pound shall contain eighteen ounces can 
 be supported in law. To say that it can would be to violate all the 
 rules of language, as long as the acts of Parliament which have been 
 cited are to regulate this subject. This has engaged the attention of 
 the legislature for five centuries, and they have thought it of the utmost 
 importance that there should be one standard of weights and measures 
 
 1 B. R., T., 18 Geo. III., c. 7. 
 
CUSTOMS CONTRARY TO STATUTES. • 423 
 
 Illustrative Cases. 
 
 throughout the kingdom. But it is said that there is no objection on 
 the force of reason and convenience why this rule should not be relaxed 
 in a particular town, because, when the exception is once established, 
 the inhabitants of that town wiU. square their notions accordingly. But 
 it is material to consider whether the exception to the rule wiU be con- 
 fined to butter only. If this custom can be established, it may also be 
 extended to hops in Kent, or to any other commodity in any other part 
 of the kingdom, and thus the greatest confusion will be introduced on a 
 subject that ought to be particularly plain. So, one measure might 
 prevail in Pool, another at Dartmouth, etc. , and thus foreign merchants 
 would never know on what terms they were treating. It might be as 
 well contended that a custom could prevail in a particular place that a 
 less number of days than seven should constitute a week, or that a less 
 space of ground than an acre should be called an acre. It was then 
 objected that, even supposing that the statute of Henry VII. applied 
 universally, the old customs should prevail till the weights and measures 
 were sent down from the Exchequer, which was directed to be done by 
 that act, and that the plaintiff should have replied that in point of fact 
 they were sent to Southampton. But the legislatilre did not say that 
 till that was done the old customs should prevail ; and we cannot sup- 
 pose that that which the legislature directed was not done. The statute 
 13 & 14 Car. II., c. 26, takes it for granted that a pound shall con- 
 sist of sixteen ounces, and that the weights and measures had been 
 sent to the different parts of the kingdom. There are two kinds of 
 weights, — one containing twelve ounces of a certain denomination, the 
 other, sixteen ounces of another denomination, — and it appears that 
 butter has always been sold by the latter. Then it was said that cus- 
 toms may prevail against common law, but they are such consuetudines 
 as are reasonable and beneficial ; but this is the reverse of both, for all 
 mankind have concurred in agr'eeing that for their mutual convenience 
 they should be regulated by 6ne uniform standard. 
 
 AsHHDEST, J. — The only ground on which this custom can be sup- 
 ported is a supposition that the legislature did not intend to interfere 
 with the customs of any particular place. But that is totally unfounded, 
 ioT the legislature supposed that at the times when the several acts 
 passed, different weights and measures prevailed in different towns, to 
 remedy which inconvenience they passed those acts. And in none of 
 them is there any reservation of any ancient customs, but they are 
 applicable to every place, directing that in future there shall be but one 
 weight and measure throughout the kingdom. 
 
 Bdixeb, J. — This case does not interfere with the question alluded 
 
424 • WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 to in the argument : ■whether a custom to sell butter in lumps of any par- 
 ticular weight is good or not. That question wDl remain, notwithstand- 
 ing this decision, as it did before ; and I have never seen anything in the 
 acts of ParUament requiring persons not to sell more or less than a pou^id. 
 But the question here is whether, when a person is selling butter under 
 the specific denomination of a pound, he shall be compellable to sell more 
 than a pound. Butter is directed to be sold by avoirdupois weight, 
 where a pound consists of sixteen ounces. Then how can a person who 
 professes to sell a pound of butter be compellable to sell more than a 
 pound ? I am of opinion that the custom cannot be supported. 
 Gbose, J. — Of the same opinion. 
 
 Judgment for the plaintiff. 
 
 Associate Justices. 
 
 32. USAGES IN CONFLICT WITH RULES OF LAW INADMISSIBLE. 
 
 Barnard v. Kellogg.* 
 In the Supreme Court of the United States, December, 1870. 
 
 Hon. Salmon Portland Chase, Chief Justice. 
 
 " Samuel Nelson, 
 
 " Noah H. Swaynb, 
 
 '♦ David Davis, 
 
 " William Stkong, 
 
 " Nathan Clifford, 
 
 " Samuel F. Miller, 
 
 " Stephen J. Field, 
 
 " Joseph P. Bradley, 
 
 1. The cnstom of mercbants and dealers in wool cannot control the general rules of law B> 
 
 to the sale of personal property. 
 
 2. A., a wool-broker In Boston, sent to B., a wool-dealer in Hartford, samples of foreign 
 
 wools in ijales, which he was selling on commission, and B. offered to purchase ai the 
 prices stated, if equal to the samples. A. accepted the offer, provided B. would come 
 to Boston and examine the wool. B. went to Boston, and after examining a portion of 
 the bales (and having the opportunity to e.ximine .-ill and open them, which he declined),, 
 purchased the wool. It proved, however, unknown to A.'s principal, to have been 
 deceitfully packed, and much in the interior of the bales was rotten and worthless. In 
 an action brought by B. against the principal to recover damages, it was held that the 
 mle of caveat emptor applied, and that evidence was not admissible to control that rule, 
 and to show that by the custom of merchants and dealers in wool in bales in Boston 
 and New York, -the two principal markets in the country for wool, -there is an 
 implied warranty by the seller to Oie purchaser that the wool is not falsely or deceit- 
 folly packed. 
 
 • Reported 10 Wall. 88S. 
 
USAGK8 AGAINST RULES OF LAW. 425 
 
 Illustrative Cases. 
 
 Erkor to the Circuit Court for the District of Connecticut, the case 
 being this : — , .. 
 
 In the summer of 1864, Barnard, a commission merchant.. residing in 
 Boston, Massachusetts, placed a lot of foreign wool received from a 
 shipper in Buenos Ayres, and on which he had made advances, in the 
 hands of Bond & Co., wool-brokers in Boston, to sell, with instructions 
 not to sell unless the purchaser came to Boston and examined the wool 
 for himself. These brokers sent to E. N. Kellogg & Co., merchants 
 and dealers in wool in Hartford, Connecticut, at their request, samples 
 of the different lots of wool, and communicated the prices at which 
 each lot could be obtained. Kellogg & Co., in reply, offered to take 
 the wool, aU round, at fifty cents a pound, if equal to the samples fur- 
 nished ; and Bond & Co., for their principal, on Saturday, the sixth day 
 of August, by letter and telegram accepted this offer, provided Kellogg 
 & Co. examined the wool on the succeeding" Monday, and reported on 
 that day whether or not they would take it. Kellogg & Co. acceded to 
 this condition, and the senior member of the firm repaired to Boston on 
 the day named, and examined four bales in the broker's office as fully 
 as he desired, and was offered an opportunity to examine all the bales, 
 and have them opened for his inspection. This he declined to do, and 
 concluded the purchase on the joint account of all the plaintiffs. Some 
 months after this, on opening the bales, it was ascertained that a portion 
 of them were falsely and deceitfully packed, by placing in the interior 
 rotten and damaged wool and tags, which were concealed by an outer 
 covering of fleeces in their ordinary state. This condition of things 
 had been unknown to Barnard, who had acted in good faith. It was, 
 however, communicated to him, and he was asked to indemnify the pur- 
 chaser against the loss he sustained in consequence of it. This he 
 declined to do, and the purchaser brought this suit. The declaration 
 counted — 
 
 Fir t. Upon a sale by sample. 
 
 Second. Upon a promise, express or iipplied, that the bales should 
 not be falsely packed. 
 
 Third. Upon a promise, express or implied, that the wool inside of 
 the bales should not differ from the samples by reason of false packing. 
 
 The court below, trying the cause without the intervention of a jury, 
 held that there was no express warranty that the bales not examined 
 should correspond to those exhibited at the broker's store, and that the 
 law, under the circumstances, could not imply any. But the court found 
 as matters of fact that the examination of the interior of the bulk of 
 bales of wool, generally put up hke these, is not customary in the trade ; 
 
426 WHEN IN coMiLurr with contkacts, ktc. 
 
 Barnard v. Kellogg. 
 
 and, though possible, would be very inconvenient, attended with great 
 labor and delay, and for these reasons was impracticable ; and that by 
 the custom of merchants and dealers in foreign wool in bales in Boston 
 and New York, the principal markets of this country where such wool 
 is sold, there is an implied warranty of the seller to the purchaser that 
 the same is not falsely or deceitfully packed ; and the court held as a 
 matter of law that the custom was vaUd and binding on the parties to 
 this contract, and gave judgment for the purchaser. 
 
 This writ of error was taken to test the correctness of this ruling. 
 
 Mr. Justice Davis delivered the opinion of the court. 
 
 No principle of the common law has been better established or more 
 often affirmed, both in this country and in England, than that in sales 
 of personal property, in the absence of express warranty, where the 
 buyer has an opportunity to inspect the commodity, and the seller is 
 guilty of no fraud, and is neither the manufacturer nor grower of the 
 article he sells, the maxim of caveat emptor applies. Such a rule, 
 requiring' the purchaser to take care of his own interests, has been found 
 best adapted to the wants of trade in the business transactions of Ufe. 
 And there is no hardship in it ; because, if the purchaser distrusts his 
 judgment, he can require of the seller a warranty that the quantity or 
 condition of the goods he desires to buy corresponds with the sample 
 exhibited. If he is satisfied without a warranty, and can inspect and 
 dechnes to do it, he takes upon himself the risk that the article is mer- 
 chantable. And he cannot relieve himself and charge the seller on the 
 ground that the examination will occupy time, and is attended with 
 labor and inconvenience. If it is practicable, no matter how incon- 
 venient, the rule applies. One of the main reasons why the rule does 
 not apply in the case of a sale by sample is because there is no oppo 
 tunity for a personal examination of the bulk of the commodity which 
 the sample is shown to represent. Of such universal acceptance is the 
 doctrine of caveat emptor in ,this country that the courts of aU the 
 States in the Union where the common law prevails, with one exception 
 (South Carolina), sanction it. 
 
 Applying this acknowledged rule of law to this case, it is easy to 
 settle the rights of the parties and to interpret the contract which they 
 made. That the wool was not sold by sample, clearly appears. And it 
 is equally clear that both sides understood that the buyer, if he bought, 
 was to be his own judge of the quality of the article he purchased. 
 Barnard expressly stipulated, as a condition of sale, that Kellogg should 
 examine the wool, and he did examine it for himself. If Kellogg in- 
 tended to rely on the samples as a basis of purchase, why did he go to 
 
USAGES AGAINST RULES OF LAW, 427 
 
 Illustrative Cases. 
 
 Boston and inspect the bales at all, after notice that such inspection was 
 necessary before the sale could be completed? His conduct is wholly 
 inconsistent with the theory of a sale by sample. If he wanted to 
 secure himself against possible loss, he should either have required a 
 warranty or taken the trouble of inspecting fully aU the bales. Not 
 doing this, he cannot turn round and charge the seller with the conse- 
 quences of his own negligence. Barnard acted in good faith, and did 
 not know, or have reason to believe, that the wool was falsely packed. 
 The sale on his part was intended to be upon the usual examination of 
 the article, and the proceeding by KeUogg shows that he so understood 
 it, and it is hard to see what ground of complaint even he has against 
 Barnard. It will not do to say that it was inconvenient to examine all 
 the bales, because, if inconvenient, it was stUl practicable ; and that is 
 all, as we have seen, that the law requires. The case of Salisbury v. 
 Stainer ^ is similar in its facts to this case, and the court applied to it 
 the rule of caveat emptor. There bales of hemp were sold, which turned 
 out to be falsely packed. The purchaser wished to treat the sale as a 
 sale by sample, but the court said to him : " You were told to examine 
 for yourself, and having opened one bale, and at liberty to open all, and 
 omitting to do it, you cannot be permitted to allege that the sale was a 
 sale ^y sample, nor to recover damages as on an implied warranty." 
 It is therefore clear, by the general principles of law adopted in the 
 interests of trade and commerce, that the seller in this instance was not 
 answerable over for any latent defects in the bales of wool. 
 
 But the learned court below having found that by the custom of 
 dealers in wool in New York and Boston there is a warranty by the 
 seller, impUed from the fact of sale, that the wool is not falsely packed, 
 and having held Barnard bound by it, the inquiry arises whether such a 
 custom can be admitted to control the general rules of law in relation to 
 the sale of personal property. 
 
 It is to be regretted that the decisions of the courts defining what 
 local usages may or may not do have not been unifoi-m. In some 
 judicial tribunals there has been a disposition to narrow the limits of 
 this species of evidence, in others to extend them ; and on this account, 
 mainly, the conflict in decision arises. But if it is hard to reconcile 
 all the cases, it may be safely said they do not differ so much in prin- 
 ciple as in the application of the rules of law. The proper office of a 
 custom or usage in trade is to ascertain and explain the meaning and 
 intention of the parties to a contract, whether written or in parol, which 
 could not be done without the aid of this intrinsic evidence. It does 
 
 1 19 Wend. 158. 
 
428 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Barnard v. Kellogg. 
 
 not go beyond this ; and is used as a mode of interpretation, on the 
 theory that the parties knew of its existence and contracted with refer- 
 ence to it. It is often employed to explain words or phrases in a con- 
 tract of doubtful signification, or which may be understood in different 
 senses, according to the subject-matter to which they are applied. But 
 if it be inconsistent with the contract, or expressly or by necessary im- 
 plication contradicts it, it cannot be received in evidence to affect it. * 
 "Usage," says Lord LtndhursT, "maybe admissible to explain what 
 is doubtful ; it is never admissible to contradict what is plain." 2 And 
 it is well settled that usage cannot be allowed to subvert the settled 
 rules of law. 3 Whatever tends to unsettle the law, and make it differ- 
 ent in the different communities into which the State is divided, leads 
 to mischievous consequences, embarrasses trade, and is against public 
 policy. If, therefore, on a given state of facts, the rights and liabilities 
 of the parties to a contract are fixed by the general principles of the 
 common law, they cannot be changed by any local custom of the place 
 where the contract was made. In this case the common law did not, 
 on the admitted facts, imply a warranty of the good quality of the wool, 
 and no custom in the sale of this article can be admitted to imply one. 
 A contrary doctrine, says the court in Thompson v. Ashton,* " would 
 be extremely pernicious in its consequences, and render vague and un- 
 certain all the rules of law on the sales of chattels." 
 
 In Massachusetts, where this contract was made, the more recent 
 decisions on the subject are against the validity of the custom set up in 
 this case. In Dickinson v. Gay,^ which was a sale of cases of satinets 
 made by samples there were, in both the samples and the goods, a 
 latent defect not discoverable by inspection, nor until the goods were 
 printed, so that they were unmerchantable. It was contended that by 
 custom there was, in such a case, a warranty implied from the sale that 
 the goods were merchantable. But the court, after a full review of all 
 the authorities, decided that the custom that a warranty was implied, 
 when by law it was not implied, was contrary to the rule of the common 
 law on the subject, and therefore void. If anything, the case of Dodd 
 V. Farlow ^ is more conclusive on the point. There, forty bales of goat- 
 skins were sold by a broker, who put into the memorandum of sale, 
 without authority, the words, "to be of merchantable quality and in 
 good order." It was contended that, by custom, in all sales of such 
 
 1 See notes to Wiggleswortli v. Dallison, s See note to 1 Smith's La. Cas., supra. 
 
 1 Smith's Ld. Cas. 4118; 2 Pars, on Con. 535, < 14 Johns. 317. 
 § 9 ; Taylor on Ev. 94S. c 7 Allen, 29. 
 
 - Blackett V. Uoyal Exchange Assur. Co., « 11 Allen, 426. 
 
 2 Cromp. & J. ai9; ante, p. 413. 
 
USAGES AGAINST RULES OF LAW. 429 
 
 IHustrative Cases. 
 
 skins there was an implied warranty that they were of merchantable 
 quality, and, therefore, the broker was authorized to insert the words ; 
 but the court held the custom itself invalid. They say: "It contra- 
 venes the principle which has been sanctioned and adopted by this 
 court, upon full and deliberate consideration, that no usage will be held 
 legal or binding on parties which not only relates to and regulates a 
 particular course or mode of dealing, but which also engrafts on a con- 
 tract of sale a stipulation or obligation which is inconsistent with the 
 rule of the common law on the subject." It is clear, therefore, that in 
 Massachusetts, where the wool was sold and the seller lived, the usage 
 in question would not have been sanctioned. 
 
 In New York there are some cases which would seem to have adopted 
 a contrary view, but the earlier and later cases agree with the Massa- 
 chusetts decisions. The question in Frith v. Barker^ was whether a 
 custom was valid that freight must be paid on goods lost by peril of the 
 sea, and Chief Justice Kent, in deciding that the custom was invalid, 
 says: "Though usage is often resorted to for explanation of commer- 
 cial instruments, it never is, or ought to be, received to contradict a 
 settled rule of commercial law." In Woodruff v. Merchants' Bank,^ 
 a usage in the city of New York that days of grace were not allowed on a 
 certain description of commercial paper was held to be illegal. Nel- 
 son, C. J., in giving the opinion of that court, says: "The effect of 
 the proof of usage in this case, if sanctioned, would, be to overturn the 
 whole law on the subject of bills of exchange in the city of New York ; " 
 and adds: "If the usage prevails there as testified to, it cannot be 
 allowed to control the settled and acknowledged law of the State in 
 respect to this description of paper." And in Beime v. Dodd^^ the 
 evidence of a custom that, in the sale of blankets in bales, where there 
 was no express warranty, the seller impliedly warranted them all equal 
 to a sample shown, was held inadmissible, because contrary to the 
 settled rule of law on the subject of chattels. But the latest authority 
 in that State on the subject is the case of Simmons v. Law.* That was 
 an action to recover the value of a quantity of gold-dust shipped by 
 Simmons from San Francisco to New York on Law's line of steamers, 
 which was not delivered. An attempt was made to limit the liability of 
 the common carrier beyond the terms of the contract in the bill of 
 lading, by proof of the usage of the trade, which was well known to the 
 shipper, but the evidence was rejected. The court, in commenting dn 
 the question, say: "A clear, certain, and distinct contract is not sub- 
 
 ' 2 Johns. 327. ^ 1 Seld. 95. 
 
 - 25 Wend. 673. * 8 Eeyes, 219. 
 
430 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Barnard v. Kellogg. 
 
 ject to modification by proof of usage. Such a contract disposes of all 
 customs by its own terms, and by its terms alone is the conduct of the 
 parties to be regulated and their liability to be determined." 
 
 In Pennsylvania this subject has been much discussed, and not always 
 with the same result. At an early day the Supreme Court of the State 
 allowed evidence of usage that in the city of Philadelphia the seller of 
 cotton warranted against latent defects, though there were neither 
 fraud on his part nor actual warranty, i Chief Justice Gibsox at the time 
 dissented from the doctrine ; and the same court, in later cases, has dis- 
 approved of it,2 and now hold that a usage, to be admissible, " must 
 not conflict with the settled rules of law, nor go to defeat the essential 
 terms of the contract." 
 
 It would unnecessarily lengthen this opinion to review any further the 
 Ameiican authorities on this subject. It is enough to say, as a general 
 thing, that they are in harmony with the decisions already noticed. 
 See the American notes to Wigglesworth v. Dallison,^ where the eases are 
 collected and distinctions noticed. 
 
 The necessity for discussing this rule of evidence has often occurred 
 in the highest courts of England, on account of the great extent and 
 variety of local usages which prevail in that country, but it would serve 
 no useful purpose to review the cases. They are collected in the very 
 accurate English note to Wigglesworth v. DalUson, and are not different 
 in principle from the general current of American cases. If any of the 
 cases are in apparent conflict, it is not on account of any difference in 
 opinion as to the rules of law which are applicable. 
 
 These rules, says Chief Justice Wilde, in Spartali v. Benecke,* " are 
 well settled, and the difficulty that has arisen respecting them has been 
 in their application to the varied circumstances of the numerous cases in 
 which the discussion of them has been involved." But this difficulty 
 does not exist in applying these rules to the circumstances of this case. 
 It is apparent that the usage in question was inconsistent with the con- 
 tract which the parties chose to make for themselves, and contraiy to 
 the wise rules of law governing the sales of personal property. It in- 
 troduced a new element into their contract, and added to it a warranty 
 which the law did not raise nor the parties intend it to contain. The 
 parties negotiated on the basis of caveat emptor, and contracted accord- 
 ingly. This they had the right to do ; and, by the terms of the contract, 
 the law placed on the buyer the risk of the purchase, and relieved the 
 
 ' Snowden v. Warner, 3 Rawle, 101. • i Smith's Ld. Gas. «98. 
 
 = Cox 11. Heisley, 19 Pa. St. 243; WotheriU * lo 0. B. S22. 
 
 V. Neilaon, 20 Pa. St. 148. 
 
USAGES AGAINST PUBLIC POLICY. 431 
 
 Illustrative Cases. 
 
 seller from liability for latent defects. But this usage of trade steps in 
 and seeks to change the position of the parties, and to impose on the 
 seller a burden which the law said, on making his contract, he should 
 not carry. By this means a new contract is made for the parties, and 
 their rights and liabilities under the law essentially altered. This, as 
 we have seen, cannot be done. If the doctrine of caveat emptor can be 
 changed by a special usage of trade, in the manner proposed by the 
 custom of dealers of wool in Boston, it is easy to see it can be changed 
 in other particulars, and in this way the whole doctrine frittered away. 
 
 It is proper to add, in concluding this opinion, that the conduct of 
 the parties shows clearly that they did not know of this custom, and 
 could not, therefore, have dealt with reference to it. 
 
 Judgment reversed and the cause remanded, with directions to award 
 a venire de novo. 
 
 Bradley and Strong, JJ., dissented. 
 
 Judgment reversed. 
 
 Associate Justices. 
 
 33. usages in conflict with rules of public policy illbgal. 
 Raisin v. Clark.* 
 
 In ttie Court of Appeals of Maryland, October Term, 1874. 
 
 Hon. James L. Baetol, Chief Justice. 
 
 " James A. Stewakt, 
 
 " John M. Robinson, 
 
 " Richard Grayson, 
 
 " Richard H. Ai.vey, 
 
 " Oliver Miller, 
 
 " Richard J. Bowub, 
 
 " George BREN'^', 
 
 It is a rule of law that an agent cannot act as such lor both vendor and purchaser, and 
 receive payment for his services from both. Therefore, a custom among brokers in the 
 city of Baltimore that in exchanges of real estate they are entitled to a commission of 
 two and a halt per cent from each party on the value of the property exchanged, is 
 invalid. 
 
 Action to recover commissions. The opinion states the case. 
 R. R. Boarman and William A. Fisher, for the appellant; FHelder 
 C. Slingluff, for the appellee. 
 Miller, J., delivered the opinion of the court. 
 
 * Reported 41 Md. 158; 20 Am. Rep. 86. 
 
432 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Eaisin v. Clark. 
 
 The appellant is a real-estate broker, doing business in Baltimore city, 
 and as such was employed by Mr. Cooper to sell for him his farm in 
 Baltimore County. As Cooper's agent, he advertised the farm for 
 sale ; and the appellee, seeing the advertisement, called upon him and 
 proposed to exchange a house she owned in the city for the farm, and 
 the exchange was effected. Cooper paid the appellant the iisual com- 
 mission of two and a half per cent on $6,000, the value placed upon 
 the properties so exchanged, and in this aetion he seeks to recover the 
 like commission from the appellee. He places his claim on two grounds : 
 First, upon an express agreement or contract between the appellee and 
 himself that she should pay him such commission in case the exchange 
 was effected ; and, second, upon an alleged custom or usage among 
 brokers in the city of Baltimore that in exchanges of real estate they 
 are entitled to a commission of two and a half per cent from each party 
 on the amount or value of the property exchanged. 
 
 The testimony is conflicting as to the making of the alleged agree- 
 ment, but the question presented for the determination of this court by 
 the present appeal is whether such an agreement, if made, can be 
 enforced by the agent by an action founded thereon. That the appel- 
 lant was Cooper's agent to sell his farm, and that the alleged agreement, 
 if ever made, was entered into while this employment continued, are 
 conceded facts in the case. In this state of facts, could he lawfully 
 become the agent of the party by whom the farm was purchased, by 
 way of. exchange of property? In our opinion, it is very clear he could 
 not. It is a general rule that a party cannot, in any agency of this 
 land, act as agent or broker for both vendor and vendee in respect to 
 the same transaction, because in such case there is a necessary con- 
 flict between his interest and his duty. The vendor, in the employment 
 of an agent to sell his property, bargains for the disinterested skill, dili- 
 gence, and zeal of the agent for his own exclusive benefit. 
 
 It is a confidence necessarily reposed in the agent that he will act 
 with a sole regard to the interest of the principal, as far as he lawfully 
 may. The seller of an estate is presumed to be desirous of selling it at 
 as high a price as can fairly be obtained for it, and the purchaser is 
 equally presumed to desire to purchase it for as low a price as he may. 
 The interest of the two are in conflict. Emptor emit quam minimo 
 potest; venditor vendit quam maxima potest. But if the same party be 
 allowed to act as agent for both, it becomes his interest to have this 
 maxim reversed, or at least to sacrifice the interests of one or both of 
 his principals in order to advance his own, by receiving double commis- 
 sions. Hence, the law will not permit an agent of the vendor, whilst 
 
USAGES AGAINST PUBLIC POLICY. 433 
 
 Illustrative Cases. 
 
 that employment continues, to assume the essentially inconsistent and 
 repugnant relation of agent for the purchaser.! In a very recent English 
 •case,^ the plaintiff employed a broker to purchase a particular ship, 
 on the basis of an offer of £9,000, or as cheaply as he could; but 
 eventually the ship was purchased for £9,250. Prior to the sale, an 
 arrangement had been made between the vendor and a broker, Scott, 
 that if the latter could sell the ship for more than £8,500, he might 
 retain for hunself the excess ; and it was arranged between Scott and 
 the defendant, without the knowledge or sanction of the plaintiff, that 
 ■defendant should receive from Scott a portion of this excess, and he 
 accordingly received £225, part of the excess over £8,500. On dis- 
 covering this, the plaintiff brought an action for money had and received, 
 against the defendant for the £225, and the Court of Queen's Bench 
 sustained the action and allowed the recovery. In the course of his 
 opinion, Cockburn, C. J., declared the law on the subject' to be well 
 and compendiously stated in Story on Agency^ (to which we have 
 referred), in these terms: " Indeed, it may be laid down as a general 
 principle that in aU cases where a person is either actually or construc- 
 tively an agent for other persons, aU profits and advantages made by 
 him in the business beyond his ordinary compensation are to be for the 
 benefit of Ms employers." In the case before us, the appellant testified 
 that he informed Cooper that the appellee was to pay him commissions 
 if the exchange was made. This would probably prevent a recovery 
 from him by Cooper of such commissions, in case they had actually 
 been paid by the appeUee ; but it does not f oUow from this that he can 
 enforce the contract against the appellee, and compel her to pay them. 
 The rule to which we have adverted forbids the courts to entertain an 
 action founded upon sueh a contract. Nor does it prevent the appli- 
 cation of the rule that this was an exchange of properties, and not a 
 sale of the farm for money. The reasons upon which the sale is 
 founded apply with equal force whether money or property, at an ascer- 
 tained value, be received by the vendor for the property he parts with. 
 It is, perhaps, possible for the same agent to serve both parties to such 
 transaction honestly and faithfully, but it is very difficult to do so, and 
 the temptation to do otherwise is so strong that the law has wisely 
 interposed a positive prohibition to every such attempt. As said by 
 Judge Story in one of the sections of his book on Agency, already 
 referred to, " it is to interpose a preventive check against such tempta- 
 
 ' story on Ag., §§ 210, 211; Schwaitze o. ' Morrison v. Thompson, 9 l/aw Eep. 480. 
 
 Yearly, si Md. 278. » Sect. 211. 
 
434 WHluN IN CONJFI.ICT WITH CONTIJACTS, KTC. 
 
 General Eules. 
 
 tions and seductions that a positive prohibition has been found to be 
 the soundest policy, encouraged by the purest precepts of Christianity." 
 After what has been said, it is hardly necessary to add that the usage 
 or custom relied on cannot avail the appellant. A usage in contraven- 
 tion of a well-settled and salutary rule of law cannot be sustained by 
 courts of justice. The appellant is, therefore, not entitled to recover 
 on either ground upon which he bases his claim. The rulings of the court 
 rejecting his two prayers accord with the views above expressed ; and it 
 follows that error, if there be any, in granting the appellee's second 
 prayer has resulted in no injury to the appellant, and the judgmeAt 
 must be aflSrmed. 
 
 Judgment affirmed. 
 
 NOTES. 
 
 § 206. Usages InadmisBilJle wlien repugnant to Express Contracts. — 
 Usages and customs are never allowed to operate against an express contract. 
 Lord Lyndhuest's language in Blackett v. jRoyal Exchange Assurance Company, 
 "Usage may be admissible to explain what Is doubtful, but It is never admis- 
 sible to contradict what is plain," states in a very concise manner tlie limits to- 
 the admission of evidence of this character in the case of express contracts. 
 "No usage or custom," said Caton, J., in an Ulinois case,' "can be admitted 
 to vary or control the express terms of a contract, but they may be admitted to 
 determine that which by the contract is left undetermined. The parties by the 
 contract may abrogate any custom, no matter how ancient or uniform, but such 
 custom cannot abrogate the terms of a contract. Whenever there is a conflict,, 
 the contract must control. The reason why a custom is allowed to be proved 
 for the purpose of interpreting a contract is because both parties are supposed 
 to have been acquainted with it, and to have contracted in reference to it. The 
 custom does not become a part of the law of the place, but rather a part of the 
 contracts which are to be performed at the place ; and hence, if the usage is 
 excluded by the contract, it cannot constitute a part of it." "When," says 
 Mr. Justice Miller, "this [usage] is confined to establishing an implied don- 
 tract, and the knowledge of the usage is brought home to the other party, the 
 evil is not so great. But when it is sought to extend the doctrine beyond this, 
 and incorporate the custom into an express contract whose terms are reduced 
 to writing, and are expressed in language neither technical nor ambiguous, and, 
 therefore, needing no such aid in its construction, it amounts to establishing the 
 principle that a custom may add to, or vary, or contradict the well-expressed 
 intention of the parties made in writing. No such extension of the doctrine is 
 consistent either with authority or with the principles which govern the law of 
 contracts." " It has therefore been held in a large number of cases that no 
 
 ' Ante, p. 413. » Paitriilgc v. Insurance Co., 16 Wall. 376. 
 
 - Dixon r Dunbam, II Dl. 321. 
 
USAGES AGAINST EXPRESS AGREEMENTS. 435 
 
 Carrier and Customer. 
 
 usage or custom repugnant to the terms of an express contract, either written 
 or verbal, is admissible to control or contradict the terms of such contract. 
 Many of these cases are irreconcilable, the conflict arising from a difference of 
 opinion on the part of individual judges as to whether a particular usage did or 
 did not contradict the plain import of the express agreement or written instru- 
 ment. Thus, the judgment of the Court of Exchequer in Blacken v. Boyal 
 Exchange Assurance Company '^ was spoken of veith disapproval by the Court of 
 Common Pleas in Humfrey v. Dale, and an examination of the cases in the 
 succeeding sections of this chapter' will show that the question before the 
 court has not, in many instances, been tested by very certain rules. In our 
 opinion, the true test as to whether a usage is repugnant to the contract was 
 laid down by Lord Campbbll in the case last cited, where he said that, to fall 
 within the exception of repugnancy, the incident must be such as, if expressed in the 
 written contract, would make it insensible or inconsistent. Mr. Browne,* referring^ 
 to Addison's advice to young authors indulging in metaphors, to flrst see 
 whether they are capable of being painted, considers it a safe rule for those 
 who have to decide whether a usage will attach an incident to an express con- 
 tract, or not, to ascertain whether they can be written down together without 
 producing contradiction or nonsense. 
 
 In the next sections will be found those usages and customs which have been 
 rejected by the courts on account of their repugnancy to express contracts in 
 different relations and occupations. It will be seen that the rule above stated 
 has, in many instances, not been applied. 
 
 § 207. Usages repugnant to Express Contracts — Carrier and Customer. — 
 The express contract between carrier and customer cannot be varied by evi. 
 dence of usage. Thus, the meaning of the letters "C. 0. D.," in an express 
 receipt, being so well known to the public, an attempt in a New York case to 
 give them by usage a different meaning was unsuccessful.* In Simmons v. 
 iow,' under a bill of lading for the carriage of treasure from San Francisco, 
 via the Isthmus, to New York, which made the carrier liable as such for its 
 transportation across the Isthmus, evidence was held inadmissible to prove that 
 it was the custom of shippers of treasure to insure it against risks upon the 
 Isthmus, or that there was a custom by which the carrier of gold refused to 
 assnme any risk of transportation across the Isthmus. This, of course, is but 
 
 ' Bodflsh V. Fox, 23 Me. 90; Hinton v. Bn^t <>* Commerce v. Bisaell, 72 N. Y. 615; 
 
 Loeke, 5 Hill, 437; Blevin v. New England Chandler v. Belden, 18 Johns 157; Parsons 
 
 Screw Co., 23 How. 430; Exchange Bank v. »• Miller, 15 Wend 561; Wadsworth v. Oloott, 
 
 Coleman, IW.Va. 69; Savings Banks. Ward, 6 N. Y. 64; Lane v. Bailey, 47 Barb. 395; 
 
 100 U. S. 16S; Knox v. The Nlnetta, Crabbe, Holmes v. Pettingill, 1 Hun, 316; Mackenzie 
 
 634; Snelling v. Hall, 107 Mass. 134; Dutch v. »• Schmidt, 22 Am. L. Reg. 448; Thwing f. 
 
 Harrison, 37 N. Y. S. C. (T. & 0.) 306 ; Mer- Great Western Ins. Co., Ill Mass. 93 ; Vail v. 
 
 oantile Ins. Co.!;. State Ins. Co., 25 Barb. 319; Rice', 5 N. Y. 155; Farmers', etc., Bank v. 
 
 Erwin V. Clark, 13 Mich. 10; Bryan v. Spur- Logan, 74 N. Y. 568; Maguire v. Woodside, 2 
 
 gin, 5 Sneed, 681 ; Fay v. Strawn, 33 lU. 295; HUt. 59. 
 Corbett v. Underwood, 83 111. 324 : Spears v. ^ -Ante, p. 413. 
 
 Ward, 48 Ind. 541; Rafert v. Scroggins, id ■' Pes*, §§ 307-215. 
 
 Ind. 195 ; Bell v. Smith, 99 Mass. 617 ; Macom - * Browne on Usages & Customs, 86. 
 
 ber ». Parker, 13 Pick. 182; StuUz v. Locke, '=■ Coliender v. Dinsmore, 55 N. Y. 2O0. 
 
 47 Md. 562; Cooke v. England, 27 Md. 14; • 8B0SW. 213; S Keyefl,217. 
 
 Bradley®. Wheeler, 4 Robt. 18; 44 N. Y. 495; 
 
436 WHEN IN CONFLICT WITH CONTKACTS, ETC. 
 
 ConLracts of Carriage. 
 
 an illastration of the rule, discussed at length elsewhere, that a usage cannot 
 be set up to contradict the terms of a contract. 
 
 Where the law has attached a certain meaning to a term in a bill of lading, 
 evidence of a custom to include within the term something additional is not 
 admissible.* Thus, in The Beeside,' Mr. Justice Story refused to admit evi- 
 dence of a custom among ship-owners that the exception of " dangers of the 
 seas," in a bill of lading, extended to all losses except those arising from their 
 neglect. In like manner, the words " perils of the seas " having been judicially 
 construed not to cover an injury to a cargo by rats or other vermin,' it was 
 properly ruled in Aymer v. Astor,* though by a divided court, that evidence of 
 mercantile usage and understanding at New York and New Orleans was not 
 admissible to show that injury by rats was included in the exception of " perils 
 of the seas " in a bill of lading. And a loss by an accidental fire not being within 
 this phrase,* a custom to include it therein is subject to the same objection. 
 But it is nevertheless held in Alabama that a carrier may show by parol evidence 
 that an exception of the " dangers of the river," as embodied in a bill of lading, 
 by usage and custom includes dangers of fire.' But the decision in Sampson v. 
 'Q-azzam,' and other Alabama cases, that the words " dangers of the river," in 
 a bill of lading, may be shown by custom and usage to include dangers by fire, 
 though followed in subsequent <;ases in the same State where the identical ques- 
 tion was presented, has been carefully restricted in its application, the court 
 being evidently unwilling to extend the principle in the least. Therefore it has 
 been held by the same court, in actions against carriers for the non-delivery of 
 goods upon bills of lading containing only the above exception, that evidence 
 of a custom among steamboatmen to ascend the river as high as the water 
 permits, and then land the cargo and deposit the goods in warehouses there,' or 
 exempting them from liability for a loss caused by the forcible and Illegal seizure 
 of the boat by a body of armed men, without fault or neglect on the part of the 
 officers or crew, is inadmissible.'" Where a bill of lading contained the words, 
 "with shipper's reconsignment option," evidence that by usage the option was 
 exercised by the consignee also, was held incompetent." 
 
 So, where a carrier contracts to transport property in a certain way, a failure 
 to follow his express contract or directions will amount to a deviation, for 
 which he will liable, and which will not be affected by a custom on the part of the 
 carrier to follow the course adopted by Mm in the particular case.'^ Thus, on 
 the receipt of an anchor, with directions to deliver at the consignee's place of 
 
 ' Lawson on Car., 5 125. « Garrison i7. Memphis Ins. Co., 19 Hot. 
 
 2 2 Sumn. 567. And see Baxter v. Leland, 312. 
 
 Abb. Adm. 348. ' Hibler v. McCartney, 31 Ala. 601; Samp- 
 
 3 The Isabella, s Ben. 139 ; Kay v. Wheeler, son v. Gazzam, 6 Port. 123 ; Ezell v. Miller, t 
 36 li. J. (0. P.) 180; L. R. 2 C. P. 302; Lav- Port. 307; Ezell v. English, 6 Port. 307, 
 croni v. Drury, 16 Jur. 1024; 8 Exch. 16«; 311; McClure v. Cox, 32 Ala. 617; Jones e. 
 The Miletus, 5 Blatchf. 335. Pitcher, 32 Stew. & P. 136. 
 
 * 6 Cow. 266. 8 6 Port. 123. 
 
 " Lawson on Car. 240, § 166; Gilmore v. " Cox v. Peterson, 30 Ala. 608. 
 
 Carmen, 1 Smed. & M. 279; Merrill v. Arey, '° Booo v. The Belfast, 40 Ala. 184 (over- 
 
 3 Ware, 215; Cox v. Peterson, 30 Ala. 608; ruling Steele v. McTyer, 81 Ala. 667). 
 Union Mutual Ins. Co. ». Indianapolis, etc., " McGovern v. Hcisseubuttel, 8 Ben. 46. 
 
 E. Co., 1 Disney. 480. " Hutch, on Car., § 310, and coses cited. 
 
MARITIME CONTKACT8. 437 
 
 Terms cannot be Altered by Usage. 
 
 business, the obligation of the carrier is not satisfied by a delivery at a wharf, 
 although such was his custom in all similar cases ; ' and placing a horse in an 
 open car, when the owner ordered it to be placed in a closed car, will make a 
 railroad company responsible for its loss or injury from such change, though its 
 custom was to carry horses in either kind of car indiscriminately." An instruc- 
 tive case on this point is Bazin v. Steamship Company.^ The defendant's agent 
 at Havre issued a bill of lading containing the following clause: "Received in 
 and upon the steamship called Shamrock, now lying in the port of Havre, and 
 bound for Liverpool, eighteen cases of merchandise, to be transshipped at Liver- 
 pool on board the Liverpool and Philadelphia steamship City of Manchester, or 
 other steamship appointed to sail for Philadelphia on Wednesday, the sixth day 
 of September, and failing shipment by her, then by the first steamship sailing 
 afterthat date for Philadelphia." Another of the defendant's steamships, the City 
 of Philadelphia, was to sail from Liverpool to Philadelphia on the 30th of August, 
 and it happened that the cases of merchandise unexpectedly arrived at the former 
 port before that day, and therefore the defendant shipped a portion of the cases 
 on the City of Philadelphia, reserving the remainder for the City of Manchester; 
 The goods sent by the latter steamship arrived at Philadelphia in due season and 
 in good order, but those sent by the former were, on account of the wreck of the 
 City of Philadelphia, lost. In an action to recover the value of the goods lost, the 
 defendant set up a usage on the part of shippers and steamship companies to 
 have goods shipped at the earliest time and by the first vessel sailing after their 
 receipt. But the defendant was held liable, Mr. Justice Grier saying that the 
 express contract must prevail. Where wheat was to be transported by the 
 carrier to New York on account and order of the plaintiff, and the bill of lading 
 contained the memorandum, "Notify E. S. Brown, N. Y.," and the carrier deliv- 
 ered the wheat to Brown instead of to the plaintiff, it was held not admissible 
 to show that by the custom of New York, under such bills of lading, property 
 was rightly delivered to the person to be notified * In a very recent English 
 case, the defendant chartered a vessel from the plaintiff for a particular voyage. 
 In the charter-party it was agreed that, after loading, the vessel should proceed 
 to a safe port in the United Kingdom, or on the continent between Havre and 
 Hamburg, both ports included, as ordered, or " so near thereto as she could 
 safely get," and deliver the cargo on being paid freight. The vessel, on being 
 ordered for Hamburg, sailed for that port, but on account of her draught of 
 water she could not get nearer to Hamburg than Stade, at which place the plain- 
 tiff offered to deliver the cargo, or so much of it as would lighten the ship and 
 enable her to proceed. The defendant refused to accept any of the cargo at 
 Stade; and, in order to earn the freight, the plaintiff discharged part of the 
 cargo into lighters, in which it was conveyed to Hamburg, and there delivered 
 to the defendant's agent. The vessel, being thus lightened, arrived at Hamburg, 
 and delivered the remainder of the cargo. The action was for breach of the 
 charter-party in refusing to accept any of the cargo at Stade, and the plaintiff 
 claimed as damages the expense incurred by him for lighterage from Stade to 
 
 • Warden v. Monrillyan, 2 Esp. 693. * Bank ot Commerce v. Bissell, 72 N. T. 
 
 2 Sagero. Portsmouth, etc., R. Co., 31 Me. 615; Farmers,' etc.. Bank v. Erie R. Co., 72 
 
 N. Y. 188. 
 
 » 3 Wall. Jr. : 
 
438 WHEN IN COMXICT WITH GONTKACT8, ETC. 
 
 Maritime Contracts — Insurance Policies. 
 
 Hamburg. The defendant pleaded a custom of the port of Hamburg, by which 
 he was not bound to accept at any place but Hamburg. On demurrer to tliis 
 plea, the Court of Appeals held that the custom of Hamburg could not override 
 the express agreement in the charter-party, and that the plaintiff was entitled to 
 the lighterage expenses.' 
 
 In Phillips V. Briard,'' the declaration stated that by charter-party it was agreed 
 between the charterers and the owner of a ship called the Maggie, being in the 
 liOndon docks, that the ship would load a cargo and therewith proceed to Hong 
 Kong, and deliver the same on being paid freight, " the ship to be conveyed to 
 the charterer's agents in China free of commission on the charter; " that, accord- 
 ing to the custom of merchants in London, whenever a ship chartered in London 
 for China is agreed to be conveyed to the charterer's agents, whether consigned 
 free of commission on that charter or not, it is the right and duty of such agents, 
 as the consignees of the ship, to procure a charter or cargo for the ship for any 
 voyage from such port, and they are entitled to be paid the usual broker's com- 
 mission on the amount of the freight payable under such contract, but in case 
 the owners of the ship procure a charter or a cargo for the ship for the con- 
 signees, the consignees are entitled to the broker's commission on any freight 
 payable under such charty-party, unless such right is excluded by special 
 contract; that although the ship was loaded, and arrived in China, and the 
 plaintiffs' agents, as consignees, performed their duty free of commission on 
 the outward voyage and cargo, and were ready to procure a charter or a cargo 
 from Hong Kong, and although the plaintiffs performed all conditions precedent, 
 the defendant, without any default of the plaintiffs' agents, procured a cargo for 
 voyage from Hong Kong, and without any such default procured a cargo to the 
 United Kingdom, the usual broker's commission on which amounted to a large 
 sum, yet the defendant has not paid or allowed the same to the plaintiffs or 
 their agents, whereby the plaintiffs were obliged to pay their agents a compen- 
 sation in respect thereof. It was held, under these circumstances, that the 
 declaration was bad, since the custom did not explain or annex an incident to 
 the contract, but made^a new contract. "Here," said Pollock, C. B., "it is 
 sought not to explain the contract by the custom, or to add to it some incidental 
 matter not inconsistent with what is expressed, but to impose on the party, who 
 has entered into one contract, another and a different obligation, and because he 
 has agreed to consign the ship to the charterers' agents on the outward voyage, 
 to make him liable to pay the agents' commission on the homeward cargo. If 
 that could be done, where is it to stop? " 
 
 Where a railroad company agreed to transport a certain quantity of hay, no 
 time being mentioned, for a certain price, a custom of railroads for all special 
 rates to expire at the end of each year was rejected.* And an express contract 
 by the sender of a message-with a telegraph company cannot be varied by the 
 usage of a local office.* 
 
 §208. Same — Insurance Policies. — Where a policy was upon "the body, 
 tackle, apparel, ordnance, munition, boat, and other furniture of the ship 
 
 1 Hayton v. Irwin, 28 Week. Rep. 665. ' Grinnell v. Western Union Tel. Co., 113 
 
 2 1 Hurl. & N. 21. Mass. 229. 
 » Martin v. Union Paciflo E. Co., 1 Wy. 
 
 Xer. U3. 
 
CONTRACTS OF INSURANCE. 439 
 
 Tormss caunot be Altered by Usage. 
 
 called the Thames," Lord Lyndhurst refused to admit evidence of a usage at 
 Lloyd's that boats slung on the ship's quarter were not protected by such policy. 
 Where oil had been lost by leakage, caused by the violent laboring of the ship in 
 a cross sea. Lord Denman refused to admit evidence of a mercantile usage that 
 unless the cargo ^♦^as shifted or the casks damaged, underwriters were not liable 
 for leakage as a " peril of the sea." ' So, evidence is inadmissible to show that 
 "the words " glass-ware in casks," in the memorandum of excepted articles in a 
 Are policy, according to the common understanding of insurers, means such 
 ware in open casks only.' Where the policy was on " the Swedish brig Sophia," 
 this was held to be a warranty that the vessel was Swedish, and evidence was 
 Tejected which was offered to show that the vessel was in fact an American ship. 
 "The cases mentioned," said Parker, C. J., "in which the usage of trade has 
 been held lo control the description of a voyage in the policy are by co means 
 analogous. The underwriter and the assured are both presumed by law to make 
 their contracts with reference to such usages, and they in fact make a part of 
 ■the contract. But there cannot be a usage by which a warranty that a vessel 
 was neutral should be held to mean that she was not neutral, but only pretended 
 to be so." * And so it was said in the Supreme Court of the United States, in a 
 more recent case, in reference to a usage as to the rate of premium to be paid: 
 <' Tested by these principles, the usage attempted to be set up cannot be sus- 
 tained. It contradicts directly the written contract. It proposes to set aside 
 all that was said about the rate of premium, and substitute the discretion of one 
 of the parties to the instrument. It goes upon the assumption that all that is 
 written in the contract which fixes, or ascertains, or limits the amount that may 
 be claimed for premium of insurance by the company is nugatory, and that the 
 whole field is left open, and the power placed in the hands of one of the parties 
 exclusively. No such usage can be admitted thus to contradict, vary, and con- 
 trol this contract." ' And in a subsequent case in the same court, where the 
 policy read, " To a port in Cuba, and at and from thence to a port of advice in 
 Europe," evidence of a usage for such vessels to stop at two ports in the island 
 was held incompetent, because repugnant to the language of the contract.^ In 
 Alabama, where a policy stipulated that the risk on the goods was to commence 
 " from and immediately following the loading thereof on board the sail-vessel or 
 toat at New Orleans," it was ruled that usage could not render the insurer 
 ..i.ble for a loss while on the wharf awaiting transportation, or while being car- 
 ried overland by rail.' In Hall v. Janson,^ which was an action on a policy of 
 marine insurance In the ordinary form, in which the interest was declared to 
 be " on money advanced on account of freight," and the court held that the 
 interest was in the ship-owner, and that it became subject to a general ayerage 
 contribution, a plea stating a custom of London, where the policy was made, 
 
 • Blackett ». Royal Exchange Assur. Co., And see King v. Enterprise Ins. Co., 45 
 4 Cromp. & J. 244 ; amte, p. 413. Ind. 43. 
 
 2 Crolts V. Marshall, 7 Oar. & P. 597; Gabay « Hearne v. Marine Ina. Co., 20 Wall. 488. 
 
 „. Lloyd, 3 Barn. & Cresa. 793. And see Seccomb v. Provincial Ins. Co., 10 
 
 s Bend v. Georgia Ins. Co., Ang. on Ins., Allen, 305. 
 
 j 25. ' Smith v. Mobile Nav., etc., Co., 30 Ala. 
 
 * Lewis V. Thatcher, 15 Mass. 431. 167. And see Hare v. Barstow, 8 Jur. 928; 
 ' Insurance Co. v. Wright, 1 Wall. 456. Hall v. Janson, 4 El. & Bl. 500. 
 
 » 4 El. & Bl. SOO. 
 
440 WUKN IN CONFLICT WITH CONTKACTS, ETC. 
 
 Policies of Insurance. 
 
 that insurance upon "money advanced on account of freight" should not be 
 liable for a general average was held bad, the custom alleged being Inconsistent 
 with the words of the policy. 
 
 Where a policy is issued covering a certain class of risks at a stipulated pre- 
 mium, a usage to abate a portion of it cannot affect the contract.' And so, to- 
 an action on a policy against a fire company for the amount of the loss insured 
 by it, a custom of the company to contribute and pay on such policy only in pro- 
 portion to what is paid on the same goods insured in another company is no 
 defence.' Where a policy insured a wharf-boat " lying at the wharf at the city- 
 of Evansville, Indiana," it was not competent to prove a custom prevailing at 
 Evansville of removing property of the character of that insured from that place 
 to a neighboring ice-harbor, for safety during the season of running ice.' The 
 words " free from average," having a certain and well-settled meaning, cannot 
 be construed by the public or the officers of insurance companies as denoting- 
 something different from their general acceptation.* And evidence of com- 
 mercial usage is not proper to show that a policy executed in blank is 
 equivalent to a policy " for whom it may concern." * Where a policy obliges 
 the insurer to pay the value of the net freight, a usage to pay two-thirds- 
 of the gross freight is bad.' In Van Alstyne v. JEtna Insurance Company,' 
 the owner of a canal-boat procured a policy of insurance of the defendant 
 on his boat for the sum of $1,000, the policy providing that it should 
 become void if any other insurance should be made upon the boat. Subse- 
 quently, he procured another policy to be issued upon the boat by another com- 
 pany. In a suit against the first company, they set up the condition as to " other 
 insurance." It was held that evidence was not admissible to show an estab- 
 lished custom to take out what is called a "trip-policy," whereby a party 
 desiring to navigate his vessel beyond the points permitted in his yearly or time- 
 policy takes out a policy for the particular trip he desires to make ; that accord- 
 ing to the custom the time-policy is suspended during the life of the trip-policy, 
 and that such a policy is not considered as " other insurance " in the sense these 
 words were used in the first policy — such a usage being in direct hostility to the 
 express provisions of the contract. Where a marine-insurance company bound 
 themselves to pay all damage to the property insured arising from "the perils 
 of the sea," it was held incompetent for them to prove that, " by the established 
 usage of trade in the port of New York and other ports, the master of the vessel 
 Is in all cases responsible for any damage sustained by the goods delivered by 
 him to the owner or consignee, unless there has been an actual survey made on 
 board the vessel by the wardens of the port or other officers, and on such survey 
 the surveyors shall have found that the goods were properly stowed, and were 
 damaged on the voyage by the perils of the sea; and that by a similar usage as 
 between the assurers and the assured, the survey so made by the wardens is 
 a document indispensable to be produced in order to charge the underwriters, 
 and that the preliminary proof is deemed insufficient unless such document be 
 
 » St. Nicholas Ins. Co. B. Mercantile Mutual < Bargett v. Orient Mutual Ins. Co., 3 
 
 Ins. Oo.,5Bosw. 238. Bosw. 386. 
 
 ' Lattomus v. Farmers' Mutual Ins. Co., 3 8 Turner v. Burrows, S Wend. 641 ; s. o. 8 
 
 Hous,t. 254. Wend. 144. 
 
 8 Tranklin Ins. Co. v. Humphrey, 65 Ind. « McGregor v. Insurance Co., 1 Wash. 0. 
 
 M9. Ot 39. 
 
 ' 14 Hon, 360. 
 
CONTKACTb AND USAGES. 441 
 
 Lanctlord and Tenant — Contracts of Hiring. 
 
 established as part ot it." Such a condition would, it was clear, have varied the 
 legal obligations of the defendants as ascertained by the plain language of the 
 policy.! 
 
 §209. Same — Landlord and Tenant. — The legal right of a landlord under 
 an express contract for a time certain cannot be evaded by a custom.^ And if a 
 tenant should agree in his lease that the landlord was to have Hie waygoing 
 crop, the custom of the country giving it to the tenant would not be allowed to 
 prevail against the express contract.' Where parties agree to leave a mine " in 
 good working order," a custom among miners to remove the pillars and sup- 
 ports is inadmissible.* 
 
 §210. Same — Contracts of Hiring. — Where a contract of hiring is for a 
 term certain, a custom of the trade for the master or the servant to determine 
 it at any time, without notice, is inadmissible to control the contract." So, 
 where a contract is entered into under which one is to work for another for one 
 year at certain wages, a usage in the place by which either party may terminate 
 contracts to labor for a given time at will, without assigning any cause for so 
 doing, is incompetent.^ Usage is not admissible to show that a stipulation in a 
 contract of hiring that the hirer was to " lose the negro's lost time," related to 
 time lost by sickness or running away, and not to time lost in consequence of 
 Ms death.' So, where one hired from another a slave, stipulating that he 
 should be employed in cutting cord-wood, " and for no other purpose," and 
 while so employed he put him to assist in the removal of cord-wood in a boat 
 and on rafts, whereby he was drowned, an offer to prove that "it was the cus- 
 tom, and considered part of the business of hands employed in cutting cord- 
 wood on the Mississippi River, to save the wood by taking it to the highlands, 
 when necessary, in boats," was rejected.' Where a cooper covenanted " to 
 instruct, or cause to be instructed in the trade of a cooper," an apprentice 
 indentured to him, a custom for coopers to send their apprentices on whaling 
 voyages was held to be repugnant to the contract, and inadmissible.' 
 
 §211. Same — Contracts for Work and Labor. — A contract for ties to be 
 supplied to a railroad company providing that the " ties will be finally inspected, 
 and accepted or rejected, when being distributed on the road-bed in advance of 
 the track," the following evidence was rejected as in conflict therewith, viz. ; 
 
 1 Bankin P.American Ins. Co., 1 Hall, 619. County was not a legitimate subject oJE 
 
 ' Werner v. Footman, 54 Ga. 128. proof." Stone, J., in Barlow v. Lambert, 28 
 
 3 Stultz V. Dickey, 5 Binn. 285. Ala. 704. 
 
 ' Randolph v. Holden, 44 Iowa, 327. ^ " In the present case, the express stipu- 
 
 ' Peters v. Stavely, 15 L. T. (N. s.) 151. lation in the contract restricting the service 
 
 • Sweet V. Jenkins, 1 R. 1. 147. of the slave to cutting cord-wood alone, and 
 
 ' "The words are plain and unambigu- excluding all other kinds of service, mani- 
 
 ous. They hst\e but one legimate mean- fasts the intention of the parties, in the 
 
 ing, and it was not permissible to give to language of the foregoing authorities, to 
 
 them a different meaning, either by direct exclude the operation of usage, and such 
 
 or indirect proof, as was proposed in this evidence would be repugnant to and incon- 
 
 case. If the contract had been silent on the sistent with the written contract." McKin- 
 
 subject of the uegi-o's lost time, we do not ney, J., in Bedford ». Flowers, 7 Humph. 242. 
 
 •ay that the alleged local custom ot Baldwin » Randall v. Rotch, 12 Pick. 107. 
 
442 WHEN IN CONFLICT WITH COi\TKA0TS, ETC. 
 
 Contracts for Work and Labor. 
 
 That there was a general custom attending the construction of railroads, 
 whereby the inspection and marking of ties constitute an acceptance by the 
 company, notwithstanding the company reserved the right of finally accepting 
 or rejecting any imperfect ties discovered when placing the ties on the road-bed 
 in advance of the track.' And where a contract for the construction of a rail- 
 road fixed, as the price of grading, a certain rate per yard, and provided that no 
 extras should be allowed, a custom to the contrary was irrelevant." Where a 
 contract requires that a party should " clear, grub, and pile the brush " on all 
 of a certain piece of land, evidence that it was not usual in the neighborhood 
 to " grub " such lands, or that a Tarm would be better without having them 
 grubbed, is inadmissible.' So, where the contract was to "clear" a tract of 
 land, a usage to affect the ordinary signification of the word was rejected. 
 And where a party agreed to dig a ditch " two feet deep and eighteen inches 
 wide at the bottom," evidence of the custom of the country as to digging 
 ditches was held incompetent.^ 
 
 Certain stone-cutters agreed in writing with the defendant to famish stone 
 for his building according to the plans and specifications of an architect, and to 
 do all the fitting and rebating necessary. Wooden patterns were necessary to 
 cut the stone according to the plans, and these the stone-cutters procured and 
 paid for, and sued the defendant for their cost, in which action it was held that 
 evidence of a usage for stone-cutters. In cutting stone for a building, to procure 
 such patterns, and recover the cost from the owner, was inadmissible. The 
 patterns were not to be paid for by the defendant, by the express terms of the 
 contract, but the plaintiffs were impliedly bound to provide them, as they were 
 to provide all other necessary tools." Where, in a contract for building a house, 
 the defendant agreed to pay " $8 per thousand for each thousand brick which 
 may be laid," It was not competent to show that by the usage of the trade it 
 was customary to compute the contents of walls having doors, windows, and 
 other openings as if they were solid.'' So, where P. covenanted to pay B. 
 " $7 per thousand for making and laying brick, counting the neat brick in the 
 building," and B. was permitted to introduce witnesses who testified that "the 
 rule known and established among masons for measuring their work and ascer- 
 taining the number of neat brick in a building was to' ascertain the number of 
 cubic feet by multiplying the aggregate length of the walls from out to out by the 
 height of the story, and that product by the thickness of the wall (which would 
 give the cubic feet in the wall), counting the corners twice, and then by multi- 
 plying the number of cubic feet thus ascertained by twent3'-two and a half, the 
 product would be the number of neat brick," the case was reversed for error. 
 
 1 Smyth V. Ward, 46 Iowa, 339. made a contract to have that portion of the 
 
 2 Phillips V. Starr, 26 Iowa, 349. land grubbed showed that he chose to differ 
 ''• " The court below erred in admitting with those who thought it better not to 
 
 evidence Bhowing that it was not usual to have it done, and refuted in advance any 
 
 grub ravines such as this, and that it was inference to be drawn from the opinions of 
 
 thought to be better for the farm not to others as to his views and wishes." Gaton, 
 
 have them grubbed. Holmes had a right to J., in Holmes v. Samuel, 15 III. 412. 
 contract to have the whole land grubbed, * Harper v. Pound, 10 Ind. 32. 
 
 as he did. Whether it was a matter of <■ Harvey ?;. Oady, 3 Mich. 431. 
 
 utility, in his Judgment, or of mere taste, it « Davis v. Galloupe, lU Mass. 121. 
 
 was his privilege to differ with others on ' Kendall v. Eussell, 5 Dana, 501. 
 
 that subject. » * * The fact that he had 
 
CONTRACTS AND USAGES. 443 
 
 Agreements for Work and Labor. 
 
 ■"The covenant," said the court, "is to be construed according to the plain 
 and obvious meaning of the terms used by the community at large, and not 
 according to their terms as used among brick-masons." ' Where A. agreed to 
 haul to his mUl and saw into boards certain mill-logs belonging to B., for which 
 service he was to receive " one-third of the stuff after sawing," it was held that 
 a usage of the mill to retain the slabs as part of the compensation for sawing 
 was inadmissible.'^ And where a contract required a party to win stones, etc., 
 <'for the purpose of building," it was held that evidence of usage was not 
 admissible to explain the sense in which the word "building" was used.' A 
 contract in writing to keep and return certain sheep cannot be shown by usage 
 to have been intended to be a contract to return an equal number of sheep of a 
 like quality.* 
 
 A printing and publishing company entered into a contract with the city of 
 Detroit to do its printing at eighty-six per cent below the rates fixed by the stat- 
 utes of Michigan for the publication of legal notices, a clause in the contract 
 providing that " no constructive charges whatever are to be made for printing, 
 publishing, or furnishing material." Under this contract the company published 
 the list of tax-sales, known among printers as " figure-work." According to a 
 custom among printers, double measure was allowed for such work in the 
 payment of employees and in charges to customers. During the time of such 
 publication, the manager of the company, on discovering such fact and ascer- 
 taining the custom, went to the city comptroller and informed him that the 
 company would make a claim against the city for double measurement. It was 
 held that the custom could -not entitle the company to double measurement, the 
 terms of the contract being conclusive on this point.* In another case, by the " 
 terms of a contract entered into by the plaintiff with the city of New York for 
 the construction of a sewer, the contractor was not to be entitled to demand or 
 receive any payment for any portion of the work to be done or materials fur- 
 nished "until the same should be fully completed, and the assessment to be 
 levied thereon duly confirmed." It was further provided in the contract that 
 advances might be made in conformity with a city ordinance which allowed 
 seventy per cent to be paid on certificate, the remaining thirty per cent to be 
 reserved until the final completion of the contract, but required that interest on 
 auch advances should be charged from the time of making them up to the time 
 of final payment. The court held that interest should be charged on the 
 advances up to the time of the confirmation of the assessment, and refused to 
 hear evidence of a custom of the defendant city, through its departments, to 
 charge interest only up to the time of the completion of the work, and not 
 until the confirmation of the assessment.* 
 
 A joint undertaking to build a vessel cannot be affected by a custom of the 
 place for persons engaged in building vessels each to be responsible only for 
 his own share.' And on a contract to pay an architect ten per cent commission 
 for building a house, evidence of the customary commissions for building such 
 bouses is irrelevant.^ 
 
 • Pavey v. Buroh, 3 Mo. 314. Detroit (Sup. Ot. Mich., April, 1880). 
 
 « George v. Bartlett, 32 N. H. 406. ' Fellows v. Mayor of New York, 17 Hun, 
 
 « Charlton v. Gibson, 1 Oar. & Kir. 541. 249. 
 
 * Wheeler o. Nurse, 20 N. H. 220. ' Eipley v. Croofeer, 47 Me. 370. 
 
 ' Detroit Advertiser, etc., Co. v. City of « Lonergan v. Courtney, 76 111. 680. 
 
444 WHEN IN CONFLICT WITH CONTKACTS, ETC. 
 
 Contracts between Principal and Agent. 
 
 § 212. Same — Principal and Agent. — And evidence of a usage is not admis- 
 sible where an agent's contract is clear and unambiguous. In a Missouri case,' 
 suit was brought on a contract to recover a balance claimed to be due under it. 
 The defendant had contracted to pay the plaintiff " twenty per cent upon all 
 original or first-year premiums collected and paid in by him upon policies issued 
 upon applications taken " by him. On the trial, the plaintiff offered evidence to 
 show that it was the established "usage, custom, and method of doing business 
 by the insurance company, in regard to such policies as were referred to in the 
 contract, to treat all premiums as collected, though, for the convenience of the 
 assured, payable in instalments." The court excluded the evidence, which 
 action, on appeal, was affirmed. Currier, J., said : "According to the obvious 
 reading of this stipulation, it is clear that it secured commissions to the plaintiff 
 alone upon moneys actually collected and paid in by him. His right to the com- 
 mission is made dependent upon an actual collection and payment. That this is 
 the true construction of the contract upon its face is not disputed. * * * 
 It was offered to be shown, in the way of explaining the contract, that the 
 insurance company concerned in these policies and premiums, upon the accept- 
 ance of an application and the issue thereon of a policy, was accustomed to 
 credit the soliciting agent's commissions at once, although the premium for the 
 first year, upon which the commission was allowed, was not then paid, and was 
 payable by instalments at future dates. » * * The defendant agreed to pay 
 the plaintiff a commission on all moneys which the plaintiff should collect and 
 pay over. There is nothing here for a construction. The plaintiff is simply 
 suing to recover commissions on money which he did not collect and pay over, 
 and seeks, by the aid of a construction founded on usage, to so enlarge the 
 scope of the stipulation as to include commissions on all original premiums, 
 whether collected and paid over or not. The parties might have so contracted, 
 but did not. The usage must yield to the express stipulations contained in the 
 written agreement." The Missouri agent of a Connecticut life-insurance com- 
 pany having inquired of the company concerning the terms on which he was 
 employed, received the following answer from them: " Concerning your status 
 In Missouri, it is simply this : You are there working up a business for yourself, 
 and are paid the highest commissions which we pay." In consequence of sub- 
 sequent disputes, the agent was soon after discharged by the company, there 
 being at the time the sum of $1,772 in his hands, which they claimed. The 
 agent brought suit for his commission, and on the trial offered to prove by men 
 familiar with the business of life insurance that the words of the letter had a 
 peculiar and well-understood meaning among insurance men ; that its meaning, 
 as understood in that business, was that the agent should have the right to 
 solicit and cause policies to be issued according to the published rules and rates 
 of the company, and should have the right, during the life and force of such 
 policies, to collect all renewed premiums thereon, and have commissions on 
 such renewals; and that if he was discharged by the company without sufficient 
 cause, he was entitled to be paid immediately the present value of his commis- 
 sions, to be computed by the actuarial rule used by such companies to value 
 policies. The trial judge excluded the evidence, and in the Supreme Court of 
 the United States, where the case was taken, his ruling was affirmed. "It 
 
 1 Kimball v. Brawner, 47 Mo. 398. 
 
CONTRACTS AND USAGES. 445 
 
 Principal and Agent. 
 
 appears to us, as it did to tlie Circuit Court," said Mr. Justice Millbr, "that 
 tlie testimony offered would have established a new and distinct term to the 
 contract. It would have established a contract very different from the written 
 one Introduced by plaintiff. The language of the letter was neither ambiguous 
 nor technical. It required and needed no expert, no usage, to discover its 
 meaning. To have admitted the usage offered in evidence in this case would 
 have been to make a contract for the parties, differing materially from the 
 written one under which they had both acted for some time." ' Where the con- 
 tract of an agent with an insurance company provided that certain specified 
 commissions should be " as compensation in full for any and all services under 
 this agreement," a custom in the insurance business giving the agent commis- 
 sions on the renewal premiums on policies obtained by him was rejected.'^ 
 
 By a written contract, commission merchants agreed that they would receive 
 goods consigned to them, and insure and sell them in accordance with pro- 
 visions contained therein, " and charge on all such sales a commission of 6 J per 
 cent, * * * which charge shall include commission, labor, cartage, insurance, 
 * * * and every expense whatever." At the termination of the contract 
 some of the goods remained unsold, and at the request of the consignees, and 
 with the consent of the consignors, were transferred to other commission mer- 
 chants. The first commission merchant sought by usage to recover one-half 
 commissions on the latter goods, but the usage was rejected as repugnant to the 
 express agreement.^ In an action to recover damages for breach of orders, on 
 the sale of an invoice of molasses consigned by the plaintiff to the defendant, 
 it appeared that the plaintiff wrote to the defendant, enclosing the invoice and 
 bill of lading of the goods, and saying: " On the arrival of this cargo, unless a 
 fair profit can be realized on landing, please have the hoops drove, and put it 
 into a good store, with the hope of sending a further cargo." The defendants 
 sold the goods at a loss, and on the trial the court rejected evidence of a custom 
 of the port, which the defendant offered, justifying their action under the cir- 
 cumstances. The jury found for the plaintiff, and the judgment was affirmed 
 on appeal. " If a usage," said Rogers, J., "be certain, uniform, ancient, and 
 reasonable, it incorporates itself into the contract. But as this is a suit for a 
 breach of an order, plain, positive, and free from ambiguity, I cannot understand 
 what the usage of those cities has to do with the matter in controversy. If the 
 plaintiff failed to prove a breach of orders, there was an end of his case. If he 
 succeeded in proving instructions binding on the defendants, and the breach of 
 them, it admits not of control by reason of any custom whatever. The agree- 
 ment of the parties constitutes the law of the contract." * 
 
 § 213. Same — Bankers and Brokers — Bills and Notes. — In Allen v. Dykers," 
 the action was upon a promissory note in these words : — 
 " $21,000. New York, January 19, 1839. 
 
 " Sixty days after date, I promise to pay to Dykers and Alstyne, or order, 
 
 > Partridge v. Insurance Co., 15 Wall. 575. ' Ware v. Hayward Rubber Co., 3 Allen, 
 
 And see Stagg v. Insurance Co., 10 Wall. 589. 84. 
 
 2 Castletnan v. Southern Mutual Ins. Co., * Porter v. Patterson, 15 Pa. St. 230. 
 
 14 Bush, 197. ' 3 Hill, 593 (affirmed in U^kers v. Allen, 7 
 
 Hill, 497). 
 
446 WHEN IN CONFLICT WITH CONTKACT8, ETC. 
 
 Bankers and Brokers — Bills and Notes. 
 
 twenty-one thousand dollars, for value received, with interest at the rate of seven 
 per cent per annum; having deposited with them as collateral security, with 
 authority to sell the same on the non-performance of this promise, two hundred 
 and fifty shares North American Trust and Banking Company stock. Sale to be 
 made at the board of brokers. Notice waived if not paid at maturity. 
 
 " Wm. Paxson Hallett." 
 
 This note was given by the plaintiff for a loan of $21,000, and was executed by 
 his agejt. He claimed, in the action, to recover the difference between the value 
 of the stock and the money loaned, on the ground that the defendants had sold 
 the stock before the money became due. The latter offered to prove that where- 
 stock was deposited with a broker as collateral security, it was the general 
 usage of brokers for the latter to hypothecate or dispose of it at pleasure, and 
 on payment or tender of the principal debt, to return an equal number of shares^ 
 of the same kind of stock. The rejection of this evidence was held proper on 
 appeal. Said Nelson, C. J. ; " It is not pretended that a pledgee, as such, has 
 a right to dispose of the pledge before the pledgeor fails to comply with his 
 engagement; on the contrary, it is conceded that such right, if it exists at all, 
 must be conferred by an express or implied agreement. In this case, as the 
 agreement between the parties was in writing, the question as to the defendant's 
 right to sell the stock before the note became due must be determined, as in. 
 other cases depending upon the construction of written instruments, by con- 
 sulting the terms and provisions of the agreement, and thus endeavoring to 
 ascertain the understanding and intent of the parties. Bringing the question 
 down to this test, and assuming that the parties expressed, and intended to- 
 express, their mutual understanding of the tei-ms upon which the loan was made, 
 it seems to me impossible to raise a doubt upon the true meaning and character 
 of the transaction. The plaintiff applies to the defendants to borrow $21,000 for 
 sixty days, offering as collateral security the two hundred and fifty shares of 
 stock in question. The defendants agree to the proposition, advance the money, 
 and take a note for the amount, stating therein the deposit of the stock, and 
 that the defendants are authorized to sell the same on non-payment of the loan. 
 The note contains no consent, express or Implied, that the defendants may sell 
 or dispose of the stock before the loan becomes due. On the contrary, it con- 
 tains a strong implied prohibition against selling except in a single event, viz. ; 
 non-payment of the money at the date specified. There is not only no authority 
 to sell before the happening of the event, — which of itself is enough to refute 
 the pretension of the defendants, and subject them to the consequences of a 
 breach of trust, — but, having provided for the sale at a given period and on a 
 specified condition, all idea of authorizing one previous to that time is neces- 
 sarily negatived, upon the familiar maxim, Expressio unius est exclusio alterius. 
 The defendants being stockholders and dealers in stock, their counsel offered to 
 prove on the trial that it was the usage, when stock was transferred to such 
 dealers by way of collateral security, not to hold it specifically, but to transfer 
 it, by hypothecation or otherwise, at pleasure, and on payment or tender of the 
 money advanced, to return an equal quantity of the same kind of stock; also, 
 that this usage was general, and known to the agent who made the loan in ques- 
 tion. The object of the offer was to lay the foundation for insisting that the^ 
 usage sho -.It' be rcgarlcl as incor^- orated in, and forming part and parcel of the- 
 
CONTUACTS AND USAGES. 447 
 
 Bankers and Brokers — Vendor and Purchaser. 
 
 agreement; thus making the latter import a consent on the part of the plaintiff 
 that the defendants might use tlie stock during the running of the loan, the 
 same as if they were the absolute owners. It is not necessary to determine 
 Trfaat effect would be due to such proof in the case of a simple pledge as 
 collateral security, without any further agreement. Possibly the known usage 
 in like cases might be considered as attaching itself to the transaction and con- 
 stituting a part of it. But when the parties have chosen to prescribe for them- 
 selves the terms and conditions of the loan, they must be held to abide by them; 
 and we are especially bound to refuse effect to any general or particular usage 
 when in direct contradiction to the fair and legal import of a written contract." 
 
 In Lombardo v. Gase,^ Case had executed the following contract: — 
 
 " New York, October 8, 1863. 
 
 " For value received, the bearer may call on me for one thousand shares of 
 
 the stock of the Cleveland and Pittsburg Kailroad Company, at one hundred and 
 
 seventeen (117) per cent, any time in six months from date, without interest. 
 
 The bearer is entitled to all the dividends or surplus dividends declared during 
 
 the time, to half-past one p. m. each day. 
 
 "(Watson E. Case." 
 
 It appeared that at the time of the making of this contract a dividend of four 
 per cent had been declared and announced, and that the stock was selling "divi- 
 dend on." The plaintiff had demanded this dividend from the defendant, but it 
 had been refused, and the action was instituted therefor. He offered to prove 
 that by the general custom of brokers and dealers in stocks in the city of New 
 York, the words " dividends or surplus dividends," in the contract, were intended 
 to mean dividends- declared on the stock, whether they had been announced 
 before or after the date of the contract, provided that on the day the contract 
 was made the stock was selling in the market "dividend on," and not "ex 
 dividend." The evidence was ruled to be inadmissible. " ' Six months after 
 date' cannot," remarked Sutherland, J., "by proof of any custom, be ex- 
 tended, or explained to mean or include 'a day or two before date.'" It has 
 been held, too, that in an action against the drawer of a bill of exchange drawn 
 and indorsed in England and payable abroad, and dishonored, evidence is not 
 admissible to prove a usage among merchants here tp entitle the holder, at his 
 option, to demand from the drawer the amount of reexchange, or the sum 
 which he gave for the purchase of the bill, this being a usage which In terms 
 contradicts the written instrument.^ 
 
 §214. Same — Vendor and PurcHaser. — Taifes v. Pym,> decided by the 
 English Court of Common Pleas in 1816, is in conflict with many later cases as 
 to the admissibility of usage to show the trade meaning of terms in written con- 
 tracts. It was an action on a sale note of " prime singed bacon," and evidence 
 was offered, and rejected, of a usage in the bacon trade that a certain latitude of 
 deterioration, called " average taint," was allowed before the bacon ceased to 
 answer the description of prime bacon. Other cases are equally irreconcilable 
 with many of the decisions contained in previous chapters of this work. A 
 contract for the sale of hOgs was in the following terms : " Muscatine, February 
 
 i 45 Barb. 95. - B iaun. 445. 
 
 2 Suse V. i'oiape, S C. B. (N. K.) 5.)3. 
 
448 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Criticism of Cash v. Hinlile. 
 
 28, 1868. — I have this day sold to H. Willmering fifty good hogs at $6.50 per 
 hundred pounds, average to be tvro hundred and fifty pounds, delivered at 
 Washington, Iowa, at said H. Willmering's option, by giving ten days' notice, 
 at any time In December. Paid on contract, $60; balance to be paid on 
 delivery of hogs." The plaintiff sued the defendant for not delivering the 
 hogs. The defendant pleaded that the plalntUf never gave Mm the notice 
 required by the contract. On the trial, the plaintiff offered to show that it 
 was customary among dealers in hogs, under such contracts, "if the buyer 
 did not declare his option, or fix the time when the stock was to be delivered, 
 then the seller was understood as contracting that the stock should be deliv- 
 ered upon the last day fixed, or, as in this case, upon the last days of the month 
 named; and defendant thus understood the contract." But this evidence was 
 held properly excluded, as contradicting its words.' A contract like the last 
 called for " sixty-five head of fat hogs, to weigh two hundred and twenty-five 
 pounds and over." The plaintiff had tendered certain hogs, which it was 
 Shown did not weigh two hundred and twenty-five pounds each, and, in an 
 action for refusing to receive, he was permitted to show that by the custom of 
 the trade the language of the contract was understood to mean that the hogs 
 should average two hundred and twenty-five pounds. On appeal, the Supreme 
 Court construed the contract as calling for sixty-five head weighing each two 
 hundred and twenty-five pounds, and reversed the case for the admission of the 
 evidence of cu.stom." This case certainly falls very near the line which divides 
 the cases in which evidence of a usage of trade is admissible to interpret a con- 
 tract, from those in which it is inadmissible to alter it. It is a close case, but, 
 in the opinion of the writer, the evidence offered was properly admitted below. 
 Miller, J., who delivered the judgment of the majority of the Supreme 
 Court, cites but one case (an Iowa one) In support of his position, and gives no 
 evidence that he had examined the question in the light of the English and 
 American adjudications. He advances no reason for his conclusion except that, 
 to his mind, the contract was plain, and free from all ambiguity. "There is 
 simply," he says, " an omission of a word to express whether the weight speci- 
 fied is the weight of each hog or the aggregate weight of all the hogs. It is 
 very clear that the former was intended, and that the word • each ' is to be Im- 
 plied." But if it was the custom of the trade, when buying and selling a lot of 
 hogs over a certain weight, to receive or deliver hogs aggregating that weight 
 throughout, though some fell under and some went over, it is clear that the con- 
 tract would purposely omit to specify what the court here thought was acciden- 
 tally omitted. The understanding of the trade as to what the contract really 
 meant was more likely to be correct than the unaided opinion of a bench of law- 
 yers. Of this belief was the chief justice, who dissented from the ruling of the 
 majority, and who did not fail to give reasons for his dissent. " Contracts," said 
 Bbck, C. J., " must be construed with reference to customs prevailing in regard 
 to their subjects ; and while the express terms of a contract may not be changed 
 or modified by parol evidence, yet the meaning of its words may be explained 
 and applied thereby to their proper objects. A custom cannot be set up against 
 the clear intention of the parties to a contract as expressed therein, but the 
 words of a contract must be construed in reference to a custom affecting the 
 
 1 WUlmerins v. Mottaughoy, 80 Iowa, 205. « Cash v. Hinkle, 36 Iowa, 623. 
 
CONTRACTS AND USAGES. 449 
 
 Vendor and Purchaser. 
 
 sabject, and known to the parties, that the true intention may be ascertained. 
 In the contract before us, the parties agree that the hogs sold are ' to weigh two 
 hundred and twenty-five pounds.' Now, the custom in question does not change 
 the import of the words. It simply applies to them a meaning. The language of 
 the contract is not explicit, and is left by the parties to interpretation. Its 
 meaning, whether each hog, or the average of all the hogs, must be two hundred 
 and twenty-five pounds in weight, may well be ascertained by proof of a custom 
 governing the trade, in view of which the law presumes the parties contracted." 
 
 In Beals v. Terry, ^ the contract was in these words : — 
 
 "For value received, we have this day sold, and agree to deliver to Messrs. 
 Boderick Terry & Co., in the city of New York, two thousand barrels superfine 
 flour, ' City Mills, Rochester,' at six dollars per barrel, payable cash on delivery 
 of each parcel, to be delivered at our option in all the month of June next, in 
 parcels of not less than two hundred barrels each. Any variation from superfine 
 to be settled at the usual rates of difference. 
 
 "Clark & Coleman. 
 
 "New York, March 26, 1847." 
 
 The defendants being unable to deliver the fiour specified when called for, and 
 an action being brought upon the contract, they offered to prove that by the usage 
 of the trade in flour in New York city it was customary, on contracts for the 
 delivery of particular brands of fiour at a future day, to deliver other brands of 
 equal quality in fulfilment of such contracts. This evidence was held to be 
 properly excluded. "We cannot recognize a usage," said Vanderpoel, J., 
 ""which will authorize a party to deliver one article in fulfilment of a contract 
 positively to deliver another — which will justify him in delivering the fabrics of 
 one mill or manufactory when he has expressly contracted to deliver those of 
 another. The injustice of such a rule is rendered manifest by the evidence in 
 this case. It is proved that when the supply of flour is small, a particular brand 
 wiU often maintain its price in the face of a general fall of f 1 a barrel. SuflSce 
 it to say, that one of the contracting parties wants a particular brand, and the 
 other agrees to deliver it to him; and it is not in law or sound reason a good 
 answer for the vendor to say, • I offered you, not the article I contracted to 
 deliver, but one just as good.' The vendee may, at the time of the contract, 
 have the most conclusive reasons for contracting for that particular brand, and 
 we cannot on any sound principle hold the contract satisfied by the tender of 
 another, which the witnesses may deem equally good." In an early Missouri 
 case,2 the plaintiffs had made their bond to defendants for $12,000, conditioned 
 that if they should by the 1st of April, 1808, pay f 6,000, payable in shaved deer- 
 skins, at forty cents to the pound, then the bond to be void. On this bond judg- 
 ment was obtained for $6,000 and interest. The plaintiffs then filed a bill in 
 chancery asking to be relieved from a portion of the judgment. They alleged 
 that in the year 1806 shaved deer-skins at forty cents per pound were only' worth 
 thirty-three and one^t^ird cents in money ; or, in other words, that a peltry 
 dollar was in value two and one-half pounds of skins, and that a silver dollar 
 was equal to three pounds of deer-skins, making a difference of one-sixth; that 
 by the custom of the country a contract like the present was understood and 
 taken to be a peltry contract, and that the sum of $6,000, being mentioned, was 
 
 ' 2 Sandf. 1S7. * Glamorgan v. Guiase, 1 Mo. 99. 
 
450 WHEN IN CONFLICT WITH CONTKACTS, ETC. 
 
 Vendor and Purchaser. 
 
 to be understood as a means for ascertaining the number of pounds of deer-skins 
 to be paid, when taken in connection with the price of the pound being fixed at. 
 forty cents. They therefore insisted that, as in April, 1808, deer-skins had 
 fallen to twenty cents per pound, and that, as fifteen thousand pounds of 
 deer-skins was the real thing contracted for, twenty cents per pound on that 
 amount should be the measure of damages. But the court refused the relief 
 asked, saying: " It was proved that the custom set up did prevail, but whether 
 that custom had the force of law or not does not appear; nor does it appear that 
 any such custom was in the mind of the parties at the time of making this con- 
 tract. Then, unless this custom amounted to law, it could have no effect on this 
 contract; and at all events this mode of expounding contracts by parol evidence 
 of the understanding of some is extremely dangerous, and by law is not admis- 
 sible. The contract must be expounded from its face, and by the law of the 
 land here. Then, looking at the instrument, and comparing it by the rules of 
 law, the parties have liquidated their own damages to $6,000, which $6,000 is- 
 dischargeable, it the party chooses, by the payment of fifteen thousand pounds 
 weight of deer-skins. If these deer-skins are not paid, the debt nevertheless 
 remains fixed at $6,000. This, we are of opinion, is the true and lawful con- 
 struction of this instrument; so that we cannot perceive injustice has been done 
 by the defendants in chancery In requiring payment to that amount." It is held 
 in Illinois that the phrase "current funds," In a note, cannot be explained by 
 usage, as its meaning is settled.' 
 
 Where W. contracted with B. for the sale of salt, as follows; "Sold J. H. 
 Sogers one thousand sacks coarse Liverpool and two thousand sacks fine Liver- 
 pool salt, at $2.10 per sack, to arrive by the 15th of November," evidence that 
 by the custom of merchants, the words "to arrive by the 15th of November" 
 meant " deliverable on or before the 15th of November," was held inadmissible.^ 
 A usage that the sale of hides was subject to the approval of the purchaser, or 
 of an inspector, was held repugnant to the following contract in a broker's 
 book, and therefore inadmissible: "Boston, September 9, 1865. — Sold William 
 B. Spooner & Co., account B. G. Boardman, 5 bales D. G. cowhides, 1 bale dry 
 do. at 17c per lb., net cash, delivered in N. ¥."« So, where there was a written 
 contract to deliver certain quantities of flour at a certain price at a named place, 
 on seller's option, proof of a usage in the market to demand margins of the 
 seller as security for the delivery was held inadmissible. " There is no ambigu- 
 ity or uncertainty in its terms or stipulations," said Mr. Justice Nelson, "and 
 the conditon sought to be annexed was not by way of explanation or interpreta- 
 tion, but in addition to the contract. The plaintiff agrees to deliver a given 
 number of barrels of flour on certain days, at the price of $9.25 per barrel, in 
 consideration of which the defendants agree to receive the flour and pay the 
 price. This is the substance of the virritten contract. But the defendants insist 
 that besides the obligations arisir'i out of the written instrument the plaintiff is 
 under an additional obligation to- give security, whenever called upon, for the 
 faithful performance, and this by the deposit in bank of the sum of $5,000. The 
 written instrument bound only the personal responsibility of the plaintiff; the 
 
 1 Moore r. Morris, 20 III. 255; Galena Ins. « Rogers v. Woodruff, 30 Ohio St. 632. 
 
 Co. V. Kupfer, 28 111. 832; Marc v. Kupfer, 84 s Boardman v. Spooner, 18 Allan, 353. 
 
 111. 286; Osgood «. MoOonnell, 32 lU. H. 
 
CONTKACTS AND nSAGES. iijl 
 
 Vendor and Purchaser. 
 
 parol evidence seeks to superadd, not a responsible name as a surety, but in 
 effect the same thing — a given sum of money. The parol proof not only adds 
 to a written instrument, but is repugnant to the legal effect of it." ' So, where 
 the defendant, by a written contract, agreed to sell the plaintiff " sixty tons of 
 Ware potatoes at £5 a ton," it was held Inadmissible to show that a particular 
 kind of Ware potatoes was meant by the. plaintiff.' Where a memorandum of a 
 contract was as follows: "Of B. Y., 39 pockets Sussex hops, Springetts; 5 
 pockets Kenwards. 78s. Springetts to wait orders," it was held that evidence 
 of custom was inadmissible to show that the sale was on a credit of six months.-' 
 Under a written contract to deliver wool "in good order," a custom which 
 would relieve the vendor from the obligation is inadmissible.* 
 
 By the terms of a contract between A. and B. for the purchase, killing, and 
 packing of hogs, it was agreed, among other things, that the hogs were to be 
 killed and packed by B. " on joint account, each party to have one-half interest.'' 
 It was held that evidence of a custom of the trade that when, under such a con- 
 tract, the packers themselves slaughtered the hogs, they were entitled, to the 
 exclusion of the other contracting party, to the profits on the sale of the bristles, 
 gut, fat, and grease from the hogs packed, was inadmissible, as being in direct 
 conflict with the express terms of the contract.* A contract for the purchase of 
 " one hundred thousand oranges, more or less, at the rate of $72 per thousand, 
 to be delivered to us boxed, in good order," cannot be affected by a custom of 
 orange-dealers to require a larger and better fruit than that delivered in the partic- 
 ular case.* Where a contract calls for a specific parcel or lot, described as being 
 of a certain quantity, "more or less," evidence of a usage to limit the words 
 " more or less " to a certain percentage is not admissible.' In an early English 
 case,' evidence had been offered for the purpose of showing that the plaintiffs, 
 who had contracted for three hundred qtiarters (more or less) of foreign rye, could 
 not, consistently with the usage of trade, be required to receive so large an 
 excess as forty-five quarters over three hundred. The question as to the admis- 
 sibility of the evidence was ultimately withdrawn from the attention of the court ; 
 but LiTTLEDALB, J., remarked that where words were of such general import, 
 he shonld feel much difficulty in saying that evidence ought to be received to 
 ascertain their meaning. Under a contract to sell " one hundred shares of 
 stock," a custom that something more passes to the purchaser is invalid ; '■> and 
 where A. contracted to sell to B. " two fiocks of sheep, except two bucks and a 
 lame ewe," at a certain price, a custom that the wool of sheep does not go to 
 the purchaser was excluded.'" 
 
 The plaintiff delivered at the defendant's elevator a quantity of com, and 
 received the following instrument: — 
 
 " Cass County Mill and Elevator Co., January 5, 1875. 
 "Received in store of C. R. Marks, one load of com, subject to storage. 
 Number of bushels, 2,920. Norton, T." 
 
 1 Oelricks v. Ford, 23 How. 49. ' Corwin v. Patch, i Cal. 204. 
 
 ' Smith V. Jeffryes, 15 Mee. & W. 561. ' Vail v. Riee, 6 N. T. 155. And see Cabot 
 
 3 Ford V. Yates, 2 Man. & «. 549; 2 Scott v. Winsor, 1 Allen, 546; Brawley v. United 
 
 N. E. 645. But see Lockett ». NicUin, 2 States, 96 U. S. 168. 
 
 ExcU. 93. ' Cross v. Englin, 2 Baxn. & Adol. 100. 
 
 1 Folhemus v. Heiman, 60 Cal. 438. » Spear v. Hart, 3 Eobt. 420. 
 
 » Atkinson v. Allen, 29 Ind. 375. '» Groat v. Gile, 29 Iowa, 431. 
 
4o2 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Miscellaneous Contracts. 
 
 The grain being destroyed the next night while in the elevator, the plaintiff 
 gued to recover its value, on the ground that the corn was sold to the defend- 
 ants, and that the transaction, as exhibited by the above writing, under a cus- 
 tom of the place where they were doing business, amounted to a purchase at 
 the market price of the grain, when the plaintiff should demand payment. But 
 it was ruled that such a custom was inconsistent with the language of the 
 instrument, and could not prevail.' 
 
 Where a Pennsylvania merchant wrote to a customer in Virginia, calling his 
 attention to the fact that an account was overdue, adding, " We must request 
 you to remit the amount," it was held that a usage In the former State that such 
 instruction implied that the remittance was to be at the risk of the creditor, was 
 inadmissible.' Where a contract for the sale of oats provides for their delivery 
 on the cars at the place of shipment, proof of a custom that the place of 
 delivery and payment is the place of destination is inadmissible ' And where 
 a contract was made for the sale of a horse, the horse delivered, and a note for 
 the price given, evidence that it was the custom in selling horses to give the 
 purchaser time to try the animal before the sale was final, was rejected.* 
 
 '§ 215. Same — Miscellaneous. — R., a carriage-builder, rented to M., by the 
 year, a gig, under a written agreement providing that E. was " to keep the gig 
 in perfect repair, and to put new linings and new wheels once every twelve 
 months, so long as M. should choose to keep it, at the rate of eighteen guineas 
 a year, without any further charges whatever." The gig, while In M.'s posses- 
 sion under this agreement, was injured through the negligent driving of a 
 third person, one shaft being broken, and it was thereupon sent to R.'s factory 
 to be repaired. R. subsequently brought an action against M. for the cost of 
 these repairs and the loan of another gig while the damaged one was under 
 repair; E. proved the usage in the trade to be that when a carriage was let out 
 on hire for a year, the lender was only to keep it in repair so far as repairs 
 might become necessary by ordinary wear and tear, but if they became neces- 
 sary from the carriage sustaining any unusual injury, the hirer was entitled to 
 charge therefor, and also for the hire of another carriage to take its place. Lord 
 Dknman ruled that the agreement subjected R. to the expense of repairs, 
 although necessary in consequence of an accident happening to the gig, and that, 
 the language of the agreement being clear and unequivocal, evidence as to the 
 general usage of the trade was irrelevant.* So, if a bailee makes a special con- 
 tract, that must be looked to in determining his liability, and evidence of usage 
 is irrelevant.' 
 
 A party executed a guaranty of "the payments of all flour consigned by the 
 said W. to the said H. for sale." This, it was held, would not cover a sale to 
 the consignee of the flour remaining unsold upon closing the account between 
 the consignor and himself, and could not be controlled by evidence of a custom 
 among commission merchants to purchase goods remaining unsold under such 
 circumstances, and to treat such a transaction as a sale to a third person.! 
 
 1 Marks v. Cass Elevator Co., 48 Iowa, 146. = Reading v. Menham, 1 Moo. 4 E 834 
 
 2 Gross V. Oriss, 3 Gratt. 262. » Goodfellow t>. Meegan, 32 Mo. 280 
 » DunoaH v. Green, 43 Iowa, 678. r Oarkin v. Savory, 14 Gray, 828 
 
 •• Schenck v. Griffin, 88 N. J. L. 462. ■'< ■ 
 
USAGES AND STATUTES. 453 
 
 General Bales. 
 
 Where it is the condition of a teller's bond " faithfully to perform all the duties 
 assigned to him in said bank, and make good to the said bank all damages which 
 the same shall sustain throngli his unfaithfulness and want of care," the usage 
 of other banks requiring of tellers only reasonable care and diligence is irrele- 
 yant.i 
 
 The custom of an innkeeper to deposit baggage in the guest's bed-room does 
 not affect a case where the guest has ordered it to be placed in the commercial 
 room.' Where there is an express agreement between a landlord and a guest 
 that absences siall be deducted from the charges for board, that it is the custom 
 of hotels not to allow such deductions is irrelevant.^ 
 
 Where a written contract provided that certain work should be " measured 
 by the city engineer," the usage in the city engineer's office for his assistants to 
 attend to such work was held to be irrelevant.* 
 
 § 216. The Effect ot Statutes on Usages and Customs. — Statutes (acts of 
 the legislature) may be regarded as the results of custom, as recognitions of the 
 practices of the community, and as the worded outcome of observance.* A 
 custom or usage, then, which if admitted would contradict the commands of a 
 statute, ought to be rejected for two reasons : First, because it is a violation of 
 the written law, which is made to be followed, and not evaded or disobeyed ; 
 and, second, because any other rule would be to recognize inconsistent cus- 
 toms, which, as we have seen, is never done.* Said James, V. C, in an I nglish 
 case : " This is a custom which tends to alter the character of the interests in 
 land belonging, respectively, to the plaintiffs and defendants, there being express 
 legislation that every Interest in land shall be created by writing. No doubt 
 this court has in several cases found means to avoid or evade that rule of the 
 legislature. I apprehend, however, that that is not a thing to be extended. 
 It appears to me to be the duty of every court, whether a court of equity or a 
 court of law, to give effect to the plain meaning of the legislature, whatever 
 may be the views entertained of Its policy or applicability in particular cases. 
 I, therefore, should be very slow to extend anything by which interests in land 
 can be created, affected, or altered by parol, or by any supposed convention 
 existing by the understanding of the parties."' A custom or usage repugnant 
 to a statutory enactment is, therefore, void.' 
 
 > Union Bank v. Forrest, 3 Cranch C. Ot. have had personal knowledge ot what was 
 218. done." Palmer v. Clark, 106 Mass. 373. 
 
 ' Richmond v. Smith, 8 Barn. & Cress. 9. ^ Ante, Chap. I., § 1; Browne on Usages £ 
 
 > Stebbins v. Brown, 65 Barb. 274. Customs, 27. 
 
 * "The words 'city engineer,' in a con- ° Ante, Chap. I., § 13. 
 
 tract," said the court, *' are merely descripUo ' Daun v. City of London Brewery Co., L. 
 
 persorus. His duties In regard to measure- B. 8 Eq. IS5. 
 
 mentwe^epreoisely what those of any other "Winter v. United States, Hempst. 344;- 
 
 engineer would have been, if another had The Lucy Anne, 13 Law Eep. (N. s.) 645; Love 
 
 been agreed upon. He had no power of sub- v. Hinckley, Abb. Adm. 436; Maury v. Beck- 
 
 Btitution. And although the performance of man, 9 Paige, 188; Hall v. Eeed, 2 Barb. Ch. 
 
 the work undoubtedly required the aid of 500 ; Coleman v. McMurdo, 5 Baud. 61. But 
 
 servants, they must have acted under his see Governor v. Withers, 5 Gratt. 24 ; Brown 
 
 direct personal supervision, and he must v. Farrar, 3 Ohio, 155 ; Mosier v. Harmon, 29 
 
 Ohio St. 220. 
 
454 WUICN IN CONflilCT WITH CONTEACTS, ETC. 
 
 Acts of Parliament — Contrary Usages. 
 
 §217. Words defined by Act of Parliament — Contrary Usages void.— 
 It follows that the admissibility of the evidence of custom to explain the mean- 
 ing of a word used In any contract whatever, is subject to the qualification that 
 if a statute has given a definite meaning to any particular word, it must be 
 understood to have been used with that meaning, and no evidence of custom 
 will be admitted to attach any other meaning to it. Thus, by statute, words 
 ■denoting weights, measures, and numbers have frequently been defined. There- 
 lore, in one case, " bushels " was held to mean only statute bushels.' In 
 another, " quarters of corn " was understood to mean legal quarters.^ In 
 Sughes v. Humphreys,' the statute 5 & 6 Wm. IV., st. 6, c. 63, which abolishes In 
 England all local or customary measures, and imposes a penalty on every person 
 who shall sell by any denominatipn or measure other than one of the imperial 
 measures, or some multiple or aliquot part thereof, was held to apply only to 
 the sale by measure of capacity, and not to sale by weight estimated in pounds ; 
 and that, therefore, it did not extend to sale by any local term designating a 
 given number of pounds' weight. As to sale of wheat by Welsh " hobbett," it 
 appeared by evidence that this designated one hundred and sixty-eight pounds 
 weight, and that a sale by " hobbett " entitled the purchaser to so many pounds of 
 wheat. And in another case, a contract for the sale of a certain nnmber of tons 
 of Iron, "long weight," was held not to be a contravention of the statute, and 
 that consequently such a contract was valid. It appeared in that case that the 
 fifteenth section of 6 Geo. IV., c. 74, was not repealed by the act alluded to, and 
 that, therefore, contracts by local weight might be lawfully made if the propor- 
 tion to the standard was expressed.' Thus, in the leading case of Noble v. 
 Durell,^ it was held by the Court of King's Bench that where a statute declared 
 that every pound of butter should weigh sixteen ounces, a custom that they 
 .should weigh eighteen ounces was bad. So, where a statute of Missouri pro- 
 vided, " The hundred-weight shall consist of one hundred pounds avoirdupois, 
 and twenty such hundreds shall constitute a ton," it was held that evidence that 
 by custom or mercantile usage a " ton " of hemp consisted of twenty-four hun- 
 dred pounds, instead of twenty hundred, was not admissible to Interpret a con- 
 tract In which G. agreed to sell to M. " thirty-five tons of hemp of the best 
 quality." ^ Where a New Hampshire law enacted that " all round timber, the 
 quantity of which Is estimated by the thousand, shall be measured according to 
 the following rule, viz.: a sticli of timber sixteen inches ia diameter and twelve 
 inches In length shall constitute one cubic foot, and the same ratio for any size 
 and quantity; each cubic foot shall constitute ten feet of a thousand," a local 
 usage, known as the Blodgett measure, which allowed at the rate of one hun- 
 dred and fifteen feet for a thousand, was held inadmissible.' Where a statute 
 declares that " two thousand pounds shall mal^e one ton," a custom with dealers 
 in pig-iron to buy and sell by the gross ton of two thousand two hundred and 
 sixty-eight pounds is inadmissible.'. 
 
 ' Hockin V. Oooke, 4 Term Rep. 314. o Ante, p. 420. 
 
 2 Maatcr of St. Gross v. Lord Howard de « Green v. Moltett, 22 Mo. 629. 
 
 Wiilden, 6 Term Rep. 838. J Rogers v. Allen, 47 N. H. 629. 
 
 " 3 El. & Bl. 954. 8 Evans v. Myers, 25 Pa. St. 114; Weaver 
 
 « Giles V. Jones, 11 Exoh. 393. r. Tegely, 29 Pa. St. 27. 
 
USAGES AND STATUTES. 455 
 
 Offices and Officers, 
 
 §218. Statutes as to Officers' Duties — Inconsistent XTsaeres. — Where an 
 O Beer's duties are prescribed by statute, usage will not excuse their discharge in 
 a different manner. Thus, where a statute required the demand of acceptance or 
 payment of a bill of exchange to be made in a certain manner, a custom among 
 notaries in the city of New York to make a demand in a different manner was 
 held inadmissible.' Where a statute described certain prison limits beyond 
 which prisoners should not be allowed to go, a contrary usage was held bad.^ 
 And where a statute prohibits highway surveyors from engaging labor without 
 the express authority of the board of selectmen, a contrary usage is bad." Where 
 the United States statutes require the licenses of vessels to be renewed at a 
 certain time, under a penalty, a custom for purchasers to await the close of navi- 
 gation before making application for a renewal will be no protection.' And 
 where the capital stock of a foreign manufacturing corporation was required to 
 be taxed at its full value, the usage of the assessors to make certain deductions 
 was rejected. In another case, the defendants were street-sprinklers, and were 
 sued for an injury caused by the plaintiff falling on a piece of ice which had 
 formed from water escaping from a hydrant. A city ordinance required that 
 persons holding such licenses as defendants had should make their own attach- 
 ments for filling their water-carts, and keep their attachments In repair. The 
 water was shut off In November, and the accident occurred in the succeeding 
 month. On the trial, the defendants offered to prove a custom among street- 
 sprinklers that at the close of the season for sprinkling the streets, when the 
 water was supposed to be shut off, the boxes and pipes were not visited until 
 the opening of the season in the spring. The evidence was held inadmissible.'' 
 
 An officer being required by law to execute his duties in a certain manner, a 
 custom that he may execute them in a different manner will not be recognized ; 
 and this is so, even though he believes that the duties cannot be satisfactorily 
 executed In the manner prescribed. In Delaplaine v. Hoxall,'' a statute of Vir- 
 ginia relating to the inspection of fiour provided as follows: "Every inspector, 
 by himself or a deputy, shall attend, when required, at such time an 1 place 
 within his county or inspection-district as the owner of any bommodity of which 
 iie is inspector may appoint, and examine such commodity, by boring through 
 the head, in case of a barrel, with an auger not exceeding half an inch in diam- 
 eter," etc. An inspector claimed the right, by custom, to use a larger auger, 
 for the reason that the auger prescribed was too small in size. But the court 
 refused to recognize the alleged custom, saying: "As to the size of the anger 
 which the inspector of flour is permitted to use, I think there can be no real 
 question. It is true that the inspector avers, in his return to the writ, that he 
 cannot make a satisfactory inspection by boring with an auger of no greater 
 diameter than half an inch, and that it had always been the custom of the 
 Inspectors to bore, with an auger of greater diameter, such as he had been in the 
 habit of using. But the averment that the inspection could not be made in a sat- 
 isfactory manner with a half-inch auger was one which, I think, it was not cora- 
 
 1 Ostego Connty Bank ». Warren, 18 Barb. * The Forrester, Newb. Adm. 81. 
 
 290; Oommercial Bank v. Varnum, 3 Lans. " Dwight v. Mayor of Boston, 12 Alleni 
 
 90. 316. 
 
 » Trull V. Wheeler, 19 Pick. 240. » Crocker v. Schureman, T Mo. App. 353. 
 
 » Scribner v. Hollis, 48 N. H. 30. ' 15 Gratt. 459. 
 
456 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Statutes Concerning Officers' Duties and Compensation. 
 
 petent for the inspector to make. The law had ascertained that a satisfactory- 
 inspection could be made with such an instrument, and it was not for him to 
 gainsay it. And it is in vain to appeal to custom to justify so plain a deviation 
 from the requirement of the statute. Much of what has been said upon the 
 other branch of this case will apply on this point to this, and I shall not, there- 
 fore, repeat it. I will content myself with saying that, in my judgment, this stat- 
 ute needs, and will admit of no resort to a usage or custom for its interpretation. 
 To adopt it would be, not to construe the law, but to set up something in direct 
 contravention of its provisions. The restriction upon the size of the auger was 
 most probably intended to limit the loss that might unavoidably occur in the 
 process of inspection, through injury to the surrounding mass by the admission 
 of air and weakening the head of the barrel, and parties are as much entitled to 
 have it respected as any other requirement of the act; and if the inspector will 
 persist in disregarding it, any party aggrieved is clearly entitled to the mandamus 
 to enforce it." 
 
 A custom which gives to a public officer a portion of the goods of the citizen 
 with which he is called upon to deal in the discharge of his office, by way of 
 additional compensation or perquisite over and above what the law expressly 
 provides as his fee, is bad. Thus, where an inspector of flour, who under a 
 statute of Virginia was allowed a certain money compensation for his services, 
 sought to establish a custom among flour inspectors in that State to take to 
 their own use, in addition to the legal fees, the flour drawn from the barrel in 
 process of in=i-iection, called the draught flour, the court refused to sanction it, 
 as both unreasouable in itself and contrary to the statute creating the office and 
 providing the compensation thereof.' " The custom, it seems to me," said Lee, 
 J., " is also bad because in conflict with the general policy of the law, and this 
 in several respects. It is certainly a marked feature in our system of offices 
 that the compensation of public functionaries shall be flxed and certain. It is 
 a great and pervading principle of our Code, and is essential to the purity and 
 impartiality of the government. The idea of a ' perquisite of office,' in the 
 sense of a fee or allowance for services beyond the ordinary salary or settled 
 wages, has no place In our legislation, but seems to be repudiated by the most 
 necessary implication. Once to admit it, is to open a vride door for imposition 
 and corruption. Dr. Webster tells us that the common acceptation of the 
 word in America is a fee to an officer for a specific service. In lieu of an annual 
 salary; but he gives also the other sense in which it is elsewhere used. The 
 salaries flxed in our Code for some officers, the specified fees for services 
 allowed to others, and the penalties imposed in some instances for demanding 
 fees for services not performed, or for demanding greater fees for services than 
 those allowed by law, all show the intention of the Legislature that the com- 
 pensation to the officer should be restricted to the fees expressly provided. In 
 the inspection laws throughout, the fees are specifically named, and the ider of 
 any further compensation would seem to be plainly excluded. For many years, 
 indeed, prior to 1792, after the sum named were added the words, ' and no 
 more,' which served not merely to limit the pecuniary fee to be paid down, but 
 to exclude the idea of any other compensation, and thus discountenance the 
 custom of taking the draught flour ; and although in that year these words were 
 
 ' Delaplaine v. Orensha-w, 15 Gratt. 457. 
 
USAGES AND STATUTES. 457 
 
 Offices and Officers. 
 
 dropped, It was doubtless because they were deemed surplusage, the idea having 
 been sufficiently expressed, as the words, ' to be paid down by the owner,' 
 found in previous acts, had been dropped in 1787. And when the present Code 
 fixes the inspector's fee at one cent the barrel, it can hardly mean to give as 
 much more in the form of flour as the inspector may think it necessary to take 
 for the purpose of inspection. Now, although a custom, when otherwise good, 
 may override and displace the common-law rule, yet a statute introducing a new 
 principle, with a negative either express or necessarily implied, must be strictly 
 pursued, and no custom can be set up against it.' And such is, I think, the 
 character of these inspection laws, for a negative to any other compensation 
 than the fee expressly given arises from most necessary Implication. And 
 although a custom or usage may be invoked to interpret a statute or a con- 
 tract that needs interpretation, where something is to be done not sufficiently 
 explained, yet where there is no doubt or ambiguity it cannot be resorted to 
 to contradict what is plain, or to control, vary, or add to or diminish what is 
 expressed in formal and deliberate terms.' This custom also, as it seems to me, 
 necessarily contravenes the policy of the provision forbidding an inspector to 
 trade in any commodity of which he is inspector. For, when it is considered 
 that this inspector withdrew for his own benefit very nearly sixty thousand pounds 
 of flour on the inspections for one house within a period of seventeen months, 
 and that for the year ending June 30, 1858, the number of barrels inspected was 
 six hundred and fifteen thousand two hundred and twenty-nine, and that for two 
 quarters only, ending December 31, 1858, the number was four hundred and one 
 thousand seven hundred and thirty-eight, it must be perceived that the inspector 
 becomes, of necessity, a large dealer in the commodity of flour. It is true, the 
 section authorizes the inspector to sell any commodity which he may have 
 received in payment of his fees, but by this doubtless is meant any article for 
 which he agrees that the fee allowed him by law may be commuted. I cannot 
 think that the act contemplated anything in the nature of a perquisite to be 
 received in kind by the inspector, over and above the fee prescribed. I think it 
 a sound principle of construction that a law imposing burdens, like any act 
 granting privileges in derogation of common right, should be interpreted favor- 
 ably to the public, and if there be even reasonable doubt as to the extent to 
 which it goes, such doubt should be resolved in their favor. If a definite and 
 described charge be made, there can be no room to presume that some other 
 and further burden in respect of the same subject was intended to be imposed." 
 In Prazier v. Warfield,'' a long-established custom had existed in Baltimore by 
 which the weight of a lot of wheat, as between buyer and seller, had always 
 been ascertained by weighing one bushel in sixty. In 1858 the Legislature of 
 Maryland passed an act to regulate the inspection of grain, which, after appoint- 
 ing certain inspectors to examine all wheat in the city of Baltimore, provided, 
 among other things, as follows: " That the said inspectors shall also carefully 
 weigh and determine the weight of all wheat that shall be inspected by them or 
 
 1 Dwar.on Stats. 475, 477 ; Lord Lovelace's « 1 Greenl. on Ev., §§ 292, 293, and cases 
 
 Case, W. Jones, 270; Jones o. Smith, 2 Bulst. cited in Blackett v. Royal Exchange Assur. 
 
 36; King v. Bishop ot London, Show. 413, Co.,2Cromp. & J. 244; The Reeeide, 2 Sumn. 
 
 420; 9 Bac. Abr., tit. "Statute," G, 237; 567 (opinion of Story, J.). 
 
 Scdgw. on Stat. & Const. Law, 38, 39. ^ 13 Md. 279. 
 
458 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Statutes as to Usury — Shipping Articles. 
 
 carried to the city for sale, and for that purpose shall procure, at reasonable 
 and proper cost, suitable weights and scales to effect the purpose herein con- 
 templated." The question was whether the inspectors could continue to weigh 
 the wheat according to the old custom. The Superior Court, before whom the 
 case first came, decided that they were bound, under the new law, to weigh the 
 whole parcel, resting its decision on the ground that the old mode had worked 
 injustice to the seller, which the statute was passed to remedy, and that "all 
 wheat," as used in the statute, could not be construed to mean one-sixth of the 
 wheat. The Court of Appeals reversed this ruling, holding that the act was not 
 intended to introd ice a new mode of weighing, but for the purpose of placing 
 between buyer and seller an impartial officer of the law. As the only guestioa 
 decided in this case was as to the intention of the Legislature in passing the act, 
 and their meaning as expressed therein, it does not conflict with the general rule 
 stated at the beginning of this section. 
 
 §219. Statutes prohibiting Usury — Contrary Usages. — A usage to lend 
 and borrow money at a higher rate of interest than is allowed by the statute 
 against usury is void.' Thus, it being held that casting interest upon the prin- 
 ciple that thirty days are the twelfth of a year, sixty days the sixth, and ninety 
 days the fourth of a year, and the three days of grace the tenth of a month, and 
 discounting a note upon such a calculation, is usurious, the note is not saved by 
 a custom among banks to calculate interest in this manner.' As «aid by the 
 chancellor in Dunham v. Gould,' " It is perfectly idle to talk of a custom among 
 merchants to take a commission above the legal rate of interest on the exchange 
 of notes. Custom of merchants is not applicable to such a case. It is not 
 matter of trade or commerce within the law-merchant, and it there were such a 
 local usage in New York, it would be null and void, and could not be set up as 
 a pretext or cover to trample down the law of the land. The money-lenders 
 throughout the country might as well set up a practice of their own, and then 
 plead it in bar of the statute." And the statutes concerning legal tender cannot 
 be affected by the local usages of banking-houses.* 
 
 § 220. Statutes as to Shipping-Artlcles and Carriers — Customs. — Instances 
 of customs being refused by the courts to control or vary acts required by 
 statute to be performed in a certain manner, are to be found in the case of ship- 
 ping-contracts. A United States statute, for example, required the master of a 
 ship, under a penalty, to make an agreement, in writing or in print, with every 
 seaman on board his vessel, declaring the voyage and terms on which the seaman 
 was shipped. In Bogert v. Cauman, the plaintiff was mate of a ship commanded 
 by the defendant, but during the voyage he was degraded by the captain, and 
 compelled to leave the ship. To prove the damages sustained, his counsel intro- 
 duced the shipping-articles, from which it appeared that he was to receive $40 a 
 
 1 Dunham v. Dey, 13 Johns. 40; Dunham Cow. 678; Bank of Utioa «. Wager, S Cow. 
 V. Gould, 18 Johns. 367; Greene v. Tyler, 39 712. 
 
 Pa. St. 361 ; Jones v. McLean, 18 Ark. 456 ; ^ 16 Johns. 367. 
 
 Niagara County Bank v. Baker, 15 Ohio St. •■ Marine Bank v. Rushmore, 28 III. 463; 
 
 68. And see Fioyer jj. Edwards, Oowp. 112. Marine Bank ,;. Birney, 28 111. 90; Marine 
 
 2 New York Firemen's Ins. Oo. v. Ely, 2 Bank v. Ogden, 29 111. 249. 
 
USAGES AND STATUTES. 459 
 
 Miscellaneous Cases. 
 
 mouth as first mate. He then attempted to prove that he was also to have a 
 certain privilege. Thompson, J.; "The testimony is inadmissible. You have 
 produced a written contract, and all previous parol agreements are merged 
 in It." He then offered to prove that it was the established usage of the city 
 to allow this privilege, and that it was never expressed in the articles. But 
 Thompson, J., rejected this evidence also.' Similar questions have been decided 
 in the same way in England, and on the same ground, viz. : of the contract in 
 question being one under a statute. In The Isabella,'' the representative of the 
 chief mate (he having died during the voyage) demanded wages under the ship- 
 ping-articles on a voyage from London to the coast of Africa, and from thence to 
 the West Indies, and also an additional sum as the value of a privilege of one 
 slave, said to be part of the agreement, and a privilege due under the ordinary 
 practice of that trade. But the court rejected that part rft the petition claiming 
 the privilege, observing that if any such understanding existed between the par- 
 ties, care should have been taken to have had it inserted in the articles ; that, the 
 articles being required by statute, it was impossible to set up a demand of this 
 collateral nature and to support it on the plea of a customary right. So, In 
 White V. Wilson ' the chief mate claimed, on a similar voyage, the value of a 
 similar privilege, which was rejected. Lord Eldon saying: "If the legislature 
 have decided that all agi-eements for wages shall be in writing, and the practice 
 be not to put in writing contracts for the price of one, two, or more slaves, that 
 practice, if allowed to prevail, may be made the means of evading the provisions 
 of the act." 
 
 A statute of Iowa* provided that "no contract, receipt, rule, or regulation 
 shall exempt any corporation engaged In transporting persons or property by 
 railway from liability of a common carrier or carrier of passengers, which wquld 
 exist had no contract, rule, or regulation been made or entered into." A cow 
 was shipped on the defendants' road, to be carried from Solon to Iowa City. 
 The animal was an imported thoroughbred short-horn, and was injured in transit 
 by the negligence of the employees of the road. In an action for the injury, the 
 defendants offered to prove that it was the custom of all the railroads in the 
 State, including the defendants', not to be liable for blooded stock beyond 
 the value of common stock. This evidence was excluded, and properly, as was 
 held on appeal. " The contract, rule, or custom sought to be established," said 
 EoTHWiCK, J., " is therefore void, under sect. 1308 of the Code, which provides 
 that 'no contract, receipt, rule, or regulation shall exempt any corporation 
 engaged in transporting persons or property by railway from liability of a com- 
 mon carrier or carrier of passengers, which would exist had no contract, receipt, 
 rule, or regulation been made or entered into.' The rights of the parties are 
 precisely the same under this statute as though no rule, custom, or contract 
 existed, and the court properly refused to admit the offered evidence, and cor- 
 rectly instructed the jury that the defendant, as a common carrier of live stock, 
 was bound to receive and ship the cow in question. It is argued that the value 
 of high-bred cattle is not fixed and determinate, but Is purely fanciful, and that 
 there is no obligation upon the carrier to carry this particular class of stock, not 
 in use for commercial purposes, and that therefore the rules, custom, and con- 
 
 ■ Amh. 97. • 2 Bos. & Pal. 116. 
 
 2 2 Eob. Adm. 199 * Code, § 1308. 
 
460 WHEN IN CONFLICT WITH CONTKACT8, ETC. 
 
 Miscellaneous Statutes and Repugnant Usages. 
 
 tract limiting liability are just and reasonable. But it will not do to say that 
 the value of all cattle Is the same, and that they are worth so much per pound. 
 The fact that there is not so general a market for high-bred cattle as there is for 
 common stock is not a criterion by which it may be said that the one is as valu- 
 able as the other. The value of a thing is what it will ordinarily sell for to 
 persons who are accustomed to dealing in that class of property, and who desire 
 to purchase. Such a rule would be wholly impracticable in its application; 
 besides, as we have found, it is in direct conflict with the statute." i And a 
 railroad company cannot establish a valid custom inconsistent with the spirit 
 and object of its charter.' 
 
 § 221. Miscellaneous Statutes and repugnant ITsages. — The provisions of a 
 statute, that " if three or more persons shall do an act in a violent and tumultuous 
 manner, they shall be deemed guilty of a riot," cannot be evaded by showing 
 that the parties charged with violating them were but acting in accordance with 
 the custom of the country." Where a statute provided that all sales of spirituous 
 and intoxicating liquors should be made for cash, a custom among merchants to 
 sell them at a thirty days' credit is inadmissible.' Where a statute provided 
 that on all negotiable promissory notes payable at a future day certain, in which 
 there was no express stipulation to the contrary, days of grace should be 
 allowed, a usage among banks not to allow days of grace was rejected. " If this 
 custom," said Shaw, C. J., "existed before the statute was passed, the statute 
 did away with the effect of it. If it has grown up since, it was bad in the first 
 Instance, and In every repeated instance, and cannot be made good by time." 
 And where a statute provides that " all bonds, contracts, and writings for the 
 payment of money or other thing, or the performance of any act or duty, are 
 assignable by indorsement," « a custom of dealers in cotton to transfer ware- 
 house-receipts by delivery is bad.' A custom that if fish caught within the State 
 of Michigan, and sold in barrels to a dealer without express warranty, prove to 
 be unsound, the seller shall refund the price, it is held in Michigan, tends to 
 defeat the purposes of the inspection law of the State, and is therefore bad.' 
 Where a statute as to partition fences requires that they shall be such " as good 
 husbandmen generally keep," evidence that although a fence was not such, yet it 
 was a customary one for the particular locality, is inadmissible.' Where a statute 
 prohibited all work on the Sabbath day, except works of "necessity or mercy," 
 it was held that a barber's apprentice could not be compelled to work on that 
 day, notwithstanding it was the custom among the great body of mechanics, 
 common laborers, and sea-faring men in the place, to resort to barbers' shops to 
 be shaved on Sunday morning.'" In a recent Pennsylvania case," a coal company 
 had pumped from its mines a quantity of water, which polluted a previously 
 
 1 McCnne v. Burlington, etc., R. Oo., Sup. vision of statute." Shaw, C. J., in Mansfield 
 
 Ot. Iowa, 1879. v. Inhabitants, 15 Gray, 149. 
 
 s Chicago, etc., B. Oo. v. The People, 66 « Perkins v. Franklin Bank, 21 Pick. 483. 
 
 ^•- 365- • Eev. Code Ala., § 1888. 
 
 3 Bankus v. The State, 4 Ind. 114. r Lehman v. MarshaU, 47 Ala. 362. 
 
 * " No usage respecting the dealings ot « Tremble v. Crowell, 17 Mich. 493. 
 
 merchants in the sales ol ordinary merohan- » Blizzard v. Walker, 32 Ind. 4,37. 
 
 disc, the traffic in which is lawlul, and the » Phillips v. Innes, 4 CI. & Fin. 234. 
 
 profits of which are not limited, can have " Pennsylvania Coal Oo. v. Sanderson, 
 
 any influence in controlling an express pro- Sup. Ot. Pa. 1880. 
 
USAGES AND STATUTES. 461 
 
 Miscellaneous Cases. 
 
 pure stream of the plaintiff's, into which it found its way. In an action therefor, 
 it was contended by the defendant that the customary mode of disposing of 
 water pumped from the mines in that region had always been to allow it to 
 ftow into the adjacent natural watercourses and proof of such a custom was 
 offered. But it was held in the Supreme Court that the custom would not 
 help the defendant, and was of no effect, for three distinct reasons. "As a gen- 
 eral custom," said Gordon, J., "it lacks the necessary age; for the beginning of 
 deep coal-mining in the regions above named is quite within the memory of men 
 yet living. Wanting this, it fails in a particular essential to the establishment 
 of such a custom. But more fatal still to the defendant's pretension is the fact 
 that the effort is thus to justify the disturbance of private property for the 
 advancement of the private interests of the defendant corporation ; and that not 
 under the plea of an ancient customary use, arising before the plaintiff acquired 
 title, but of a general custom which would authorize the present injury or 
 destruction of the rights of riparian owners. But a custom such as this would 
 not only be unreasonable, but also unlawful, and therefore worthless. It is 
 urged that miniug cannot be carried on without this outflow of acidulous water; 
 hence, of necessity, the neighboring streams must be polluted. This is true ; and 
 it is also true that coal-mining would come to nothing without roads upon which 
 to transport the coal after it is mined; therefore, roads are necessary; but it 
 does not follow that for such purpose the land of an adjacent owner may be 
 taken, or his right of way encumbered, without compensation. If, indeed, the 
 custom set up were to prevail, then, at least so far as coal-mining companies are 
 concerned, there would be an abrogation of the eighth section of Art. XVI. of the 
 Constitution, which provides that 'municipal and other corporations invested 
 with the privilege of taking private property for public use shall make just 
 compensation for property taken, injured, or destroyed by the construction and 
 enlargement of their works, highways, or improvements.' Not only would we 
 thus have a custom superior to the supreme law of the land, but one reaching 
 even beyond the possible sovereignty of the State, in that it would empower 
 private persons, for private purposes, to injure or destroy private property, and 
 that without compensation. A custom such as this is radically bad, and cannot 
 be sustained.'' In a Massachusetts case, a servant was injured by the explosion 
 of a steam-boiler in his master's manufactory. A statute required all steam- 
 boilers to be provided with a fusible safety-plug. The defendant's boiler was 
 not so provided ; but in an action brought by the servant to recover damages for 
 the injury, alleging that the injury was caused by the want of a proper gauge 
 and similar appendages, the defendant sought to show that it was not customary 
 among persons having in use such boilers as his, and in such establishments as 
 his, to use the fusible safety-plugs, and asked an instruction that if his boiler 
 was supplied with all such appurtenances and appliances for safety as such 
 establishments were ordinarily supplied with, he was not liable, even though in 
 fact he did not have the boiler supplied with the statutory safety-plug. In the 
 Supreme Court it was ruled that the court below had rightly held tha'. a custom 
 not to observe the law could not be shown.^ 
 
 • Cayzer v. Taylor, 10 Gray, 410. 
 
462 WHEN IN CONFIilCT WITH CONTRACTS, ETC. 
 
 Statutes Construed by Usuage. 
 
 § 222. Statutory BzemptlonB cannot be waived by TJaage. — Where a stat- 
 ute lays down a certain rule, but prescribes that the parties may contract other- 
 wise, a usage will not take the place of a contract. In Walker v. TYansportation 
 Company,^ decided in the Supreme Court of the United States in 1865, the plain- 
 tiff had shipped upon one of the defendants' boats a cargo of grain, which was 
 destroyed by fire while in their possession. The bill of lading excepted "perils 
 of navigation," "perils of the sea," and other similar losses. By an act of 
 Congress of March 3, 1851,' the owners of vessels, in case of loss by fire, are 
 exempted from liability "unless such fire is caused by the design or neglect" 
 of such owners ; in other words, they are not liable for a loss by fire arising 
 from the negligence of their oflBcers or agents. There is a proviso in the act 
 that it shall not " prevent the parties from making such contracts as they please, 
 extending or limiting the liability of such owner." The loss in question being 
 caused by the negligence of the defendants' agents, the plaintiff endeavored to 
 show that the defendants were liable under this proviso, contending that the 
 words " perUs of navigation," "perils of the sea," In the bill of lading, by usage 
 and custom, while excusing the carrier from accidental losses of various kinds, 
 still held him liable for a loss by fire caused by the negligence of his servants. 
 But the court held that there was nothing in the language of the words just 
 cited that made the owner liable for such a loss ; that usage could not add to 
 words which did not express it a liability from which the act of Congress 
 declared the defendants to be free ; that the contract mentioned in the proviso, 
 which could take a case out of the statute, must be one made by the parties, and 
 not by custom or usage — in other words, an express contract. 
 
 § 223. Statutes may be construed by Usage. — If the meaning of the words 
 of a statute be uncertain, usage may be resorted to for the purpose of in- 
 terpreting them. In a general statute, doubtful words may be explained by 
 reference to general usage. In a statute applicable to a particular place only, 
 ambiguous words may be construed by the usage at that place.' In the expla- 
 nation of doubtful language in an act of Parliament, contemporaneous and 
 continuing usage has always been much relied upon.* Usage has been fre- 
 quently said to be one of the best guides to the construction of a statute.^ In 
 the case of Magistrates of Dunbar v. Ihicheas of Boxburgh,^ it was expressly 
 held that long usage is of no avail against plain statutory enactments,, and that 
 such a usage can be binding on parties only as the interpreter of a doubtful 
 
 1 3 Wall. 160. Jackson ». Gamaer, 2 Cow. 567; If-Ferran 
 
 2 9 Stats, at Large, 635. „. Powers, 1 Serg. & R. 106. 
 
 3 Frazier v. Warfield, 13 Md. 279; Love v. ' Board v. Cronk, 1 Halst. 119; Taylor v. 
 Hinckley, Abb. Adm. 437. Griswold, 2 C. E. Green, 222; The State 
 
 ■> Grant on Corp. 27; Bank ol England v. v. Jersey Olty, i Zab. lOS; Polk v. Hill, 2 
 
 Anderson, 3 Blng. N. 0. 666; Rex v. Scott, Overt. 157; Stevens «i. Coxe, 4 Pa. St 13 ; 
 
 6 Term Rep. 604; Rex v. Aire, etc., Nav. Handel ». Isaac, 14 Md. 202 ; Cameron v. Mer- 
 
 Co., 2 Term Rep. 664; Attorney- General v. chants', etc., Bank, 37 Mich. 240. "Theuni- 
 
 Newcombe, 14 Ves. 18; Mayor «. Long, 1 form practice under this and similar stat- 
 
 Camp. 21; Attorney-General v. Parker, S utes lor fifty years," said Eedfleld, J., in one 
 
 Atk.576; Attorney General «. Foster, 10 Ves. case, "is a matter of no slight weight in 
 
 !i55; Earl of Buckinghamshire v. Drury, 2 fixing the construction of a statute." Sfcer- 
 
 Eden, 74; Meriam v. Harsen, 2 Barb. Oh. win ». Bugbee, 16 Vt. 489. 
 233; MoKeen ir. Delancy, 8 Uranch, 82; " 3 CI. & Fin. 335. 
 
STATUTES CONSTRUED BY USAGE. 463 
 
 Municipal Charters and Powers. 
 
 law, and as affording a contemporaneous exposition ; but that where a statute 
 is expressive as to some points and silent as to others, usage may well supply 
 the defects if not inconsistent with the express directions of the statute. 
 
 § 224. Mvmidpal Cbarters and Powers as affected by Usage. — In Eagland, 
 municipal corporations exist and exercise power and authority by virtue of a 
 long-established usage or prescription ; which supposes a grant by charter or act 
 of Parliament which has been lost.i Many cases of customs affecting municipal 
 corporations are, therefore, to be found in the books which are of no special 
 interest in this country, and of no practical value — such as customs supporting 
 monopolies;^ to compel the officers to give a dinner;' to compel the accept- 
 ance of an office; » to enforce penalties; " to regulate the election of officers; « 
 to prove the existence of a by-law,' or the existence of a charter,' or the right 
 to a corporate name.' With respect to the means of arriving at the proper con- 
 struction of a charter, Mr. Brown says : '» " The best means that can be resorted 
 to for the interpretation of charters containing dubious or obscure expressions 
 is contemporaneous usage, for optimus interpres rerum ■usus; and contempo- 
 raneous usage is always admissible for obtaining the true intention of such 
 expressions, and, generally, it may be laid dowu that the uniform course of mod- 
 em decisions fully establishes the rule that however general the words of 
 ancient grants may be, they are to be construed by evidence of the manner in 
 which the thing granted has always been possessed and used." But, though 
 usage is competent to explain doubtful expressions in a charter, it is not so to 
 elucidate its general terms." The word " inhabitant," as used in a charter, has 
 been construed by nsage.'^ And a usage, however ancient, is overthrown and 
 
 1 DUl. on Mnn. Corp., chap. 5, § 56. woofl, 4 Barn. & Cress. 786 ; Taylor v. Gris- 
 
 » BoBworth V. Bugden, 7 Modern, 459. wold, 2 C. E. Green, 2i3; Perkins v. Cutters' 
 
 Colchester v. Goodwin, Cart. 117; Player v. Co., 1 Selw. N. P. 1144. 
 
 Jones, 1 Vent. 21; Bosworth v. Home, 2 » Town ol Pawlet v. Clarke, 9 Cranch, 
 Stra. 1085; Player ». Verc, T. Kay«i. 288; 294; DUlinghara «. Snow, 7 Mass. 547 ; SJock- 
 Bowdie i». Pennell, 1 WUs. 238; Tailors of bridge v. West Stockbridge, 12 Mass. 400; 
 Bath 17. Glazby, 2 Wils. 266; HaiTison v. Bow «. Allenstown, 34 N. H. 351 ; Hagerstown 
 Godman, 1 Burr. K; Hesketh v. Braddock, Turnpike Co. v. Creeger, 3 Har. & J. 122; 
 3 Burr. 1858; Wooly ». Idle, 4 Burr. 1592; Shrewsbury v. Hart, 1 Oar. & P. 113. 
 King V. Coopers' Co., 7 Term Rep. 543 ; King = All Saints' Church v. Lovett. 1 Hall, 141 ; 
 V. Tappenden, 3 East, 186; Chamberlain of Trott v. Warren, 2 Fairf. 227; Dutchess Cot- 
 London V. Oompton, 7 Dow. & Ey. 601 ; Clark ton Man. Co. v. Davis, 14 Johns. 238 ; Middle- 
 V. Denton, 1 Barn. & Adol. 92; CJark ». Le sex Husbandmen ». Davis, 3 Mete. 133 ; Kobie 
 Cren, 9 Bam. & Cress. 52 ; Davis v. Morgan, v. Sedgwick, 35 Barb. 319. 
 1 Cromp. & J. 687 ; Fazakerley e. Wiltshire, 1 ■» Brown on Corp. 27. 
 Stra 466. " Kex v. Grant, 1 Barn. & Adol. HI ; With- 
 
 3 Carter v. Sanderson, 5 Bing. 79; Wallls' nell «. Gartham, 6 Term Rep. 388; Blankney 
 
 Case, Cro. Jac. 555. * «• Winstanley, 3 Term Rep. 279: Davis «. 
 
 ' Grafton's Case, 1 Modem, 10; Eex ». Waddington, 7 Man. & G. 42; Governors ». 
 
 Grosvenor, 1 Wile. 18. Scarlett, 2 You. & J. 330; Bailiffs v. Brick- 
 
 s Clark v. Tucker, 3 Lev. 282 ; I.ee ». Wal- nell, 2 Taun. 120 ; Rex v. Johns, Lofft, 77. 
 
 lis, 1 Kenry. Cas. 275; Bex v. Fevershara, 8 « Rex v. Mashiter, 6 Ad. & E. 163; Rex v. 
 
 Term Rep. 356 ; Player v. Vere, T. Raym. Davie, 6 Ad. & B. 374; Withnell v. Gartham, 
 
 828; Bex v. Spencer, 3 Burr. 1839. 6 Term Bep. 398; Attorney-General «. Par- 
 
 • Case ot Corporations, 4 Coke, 77; Rex v. ker, 3 Atk. 576; Attorney-General v. Foster, 
 
 Atwood, 1 Nev. & M. 286. 10 Ves. 335 ; Attorney-General v. Newcombe, 
 
 ' Bex V. Tomlyn, Cases temp. Hardw. 316 ; 14 Ves. 1. And see Dundee Harbor Trustew 
 
 Rex V. MiUer, 6 Term Bep. 280 ; Eex v. West- *. Dougall, 1 Sc. App. Oas. 20. 
 
464 WHEN IN CONFUCT WITH CONTEACTS, ETC. 
 
 Statutes Construed by Usage. 
 
 abrogated by the acceptance of a charter inconsistent with it.' "A usage not 
 inconsistent with a charter, nor repugnant to it, may continue notwithstanding 
 the acceptance of a charter, but a usage repugnant to the charter cannot." 
 This was laid down distinctly by Tbntbrdbn, C. J., in an early case, where the 
 charter of a city provided that vacancies in the council should be filled by the 
 election of "burgesses and inhabitants " of the city. The defendant, who was 
 not an inhabitant of the city, was elected to fill a vacancy in the council, and 
 sought to defend his title by a usage in the city to elect burgesses not inhabi- 
 tants thereof. But it was unanimously ruled in the King's Bench that the usage 
 was repugnant to the charter, and could not be pleaded.'' 
 
 Likewise, in this country, custom has been looked to for the purpose of inter- 
 preting the meaning of particular phrases in charters giving authority to munici- 
 pal corporations. Thus, in Willard v. Newbury port,^ it was said that the term 
 "prudential concerns" embi-aced those subjects affecting the accommodation 
 and convenience of the inhabitants not otherwise specifically provided for, which 
 had been placed under the jurisdiction of towns either by statute or by usage. 
 So, in a later case in the same State, where the same words were in dispute, the 
 court said: " In looking to usage and custom as the means of ascertaining what 
 subject of common interest Is embraced under the term 'prudential,' the court 
 are of opinion that the erecting of a market-place in the large towns and popu- 
 lous villages is embraced. * * * It may be suggested that referring to usage 
 as a source of this power is still leaving the subject open to doubt. It does so ; 
 but as there are some subjects which have long been regarded as within the 
 authority of towns, not made so by statute, and as such powers have never been 
 questioned, there is no authority whence they can be derived but usage. Indeed, 
 a recurrence to the history of the formation of towns will show that most of 
 the powers originated in usage, founded on the convenience and necessities of 
 th« Inhabitants, and wer« afterwards recognized and confirmed by statute."* 
 But, as said by a learned writer, usage in this country has a much more limited 
 operation ; and it seems to be a necessary result of the creation of municipal 
 corporations by legislative acts, wherein their powers and duties are expressly 
 prescribed; that these powers and duties cannot be added to, enlarged, or 
 diminished by usage or custom.' Where the charter of a city provided that no 
 contract should be binding on it unless made by some authorized agent and an 
 appropriation therefor voted, it was held that it was not liable for legal services, 
 beneficial to the city, performed by counsel retained by a majority of the board 
 of aldermen without any official action of either branch of the council, although 
 the usage of the city had been to pay such bills as were approved by a com- 
 mittee of either board without any formal vote.* And an unlawful expenditure 
 of the money of a town cannot be rendered valid by usage, however long con- 
 tinued. Thus, in Hood v. Lynn,'' a custom in the town of Lynn to celebrate the 
 
 ' Powell V. Eegina, 2 Bi-o. P. C. 298; Had- « " The usage here attempted to be estab- 
 
 dock's Case, T. Uaym. 435. lished," said the court, " 1b in violation of 
 
 2 Hext). Salivay,9Barn. &CresB.i24; Eex the general law and the charter and ordi- 
 
 TF. Chester, 1 Man. & Sel. 101. nances o{ tbe city. The doing of one wrong 
 
 ' 12 Pick. 227. does not excuse another." Butler v. City of 
 
 * Spaulding v. Lowell, 28 Pick. Tl; Smith Oharlestown. 7 Gray, 13. 
 
 V. Cheshire, 13 Gray, 308. 7 i Allen, lOS. 
 
 6 Dill, on Mun. Corp. 230. 
 
CUSTOMS IN CONFLICT WITH THE COMMON LAW. 465 
 
 Contradictory Opinions. 
 
 Fourth of July was ineffectual to sustain a vote of money for such a purpose, 
 not authorized by the charter ; and in Benoit v. Conway,^ authority in a town 
 treasurer to borrow money on the credit of the town was held not sustainable 
 by proof of a usage to that effect — in the first case it being laid down that the 
 custom of a municipality, in order to be valid, must be a custom necessary to 
 the exercise of some corporate power or the enjoyment of some corporate 
 right, or one which contributes essentially to the necessities and conveniences of 
 the inhabitants. 
 
 § 225. Customs and TTsages not inadmissible because In conflict with 
 Common-Law Rules. — It was no objection to a common-law custom that it 
 was contrary to the common law of the land; '' otherwise the customs of gavel- 
 kind or borough-English, which are directly opposed to the law of descent; the 
 custom of Kent, which is inconsistent with the law of escheats, and many other 
 customs in conflict with common-law rules or maxims, could not have been 
 recognized. In general, too, evidence of a usage of trade is not inadmissible 
 because it is contrary to the principles of law governing such cases ; for it is 
 obvious that if proof of a usage could be rejected because it established some- 
 thing different from the law, no custom would ever be proved, because if itjwere 
 not different it would be a part of the law. 
 
 § 226. Contradictory Expressions of some Courts on tbls Subject. — This 
 being so plain, it is somewhat startling to find a large number of cases in the 
 reports in which the principle is broadly laid down that a usage or custom in 
 opposition to an established rule of law is void and of no effect. Thus, in 1760, 
 Lord Mansfield, speaking of evidence of custom in an action on a bill of 
 exchange, said: "The point of law is here settled, and when once solemnly 
 settled, no particular usage shall be admitted to. weigh against it. This would 
 send everything to sea again." ' In Eager v. Atlas Insurance Company,* Wilde,* 
 J., said: " Now, it seems to me very clear that no particular usage opposed to 
 the established principles of law can be sustained." In Warren v. Franklin 
 Insurance Company,^ Celafmas, C. J., said: "This being the rule of law as to 
 damages, the custom of a particular port could not vary it." In Bargett v. 
 Orient Insurance Company,^ Bos worth, J., said: "No usage can exist or be 
 proved by which the liabilities of parties to a written contract will be greater or 
 less than the settled law of the State has adjudged them to be." In Bomer v. 
 Dorr,'' the Supreme Judicial Court of Massachusetts said: " Evidence of custom 
 and usage is useful in many cases to explain the intent of parties to a contract. 
 But the usage of no class of citizens can be sustained in opposition to principles 
 of law." In Bapp v. Palmer,' lioa^RS, J., said: "Although a' usage is often 
 resorted to for explanation of commercial instruments, it never is or ought to 
 be received to contradict a settled rule of commercial law." In The Pacific,^ 
 Deady, J., said: "The law, and not such a custom, ascertains and limits the 
 rights and liabilities of shippers and common carriers." In Schieffelin v. Har- 
 
 1 10 Allen, 623. * IM Mass. 618. 
 
 » Horton v. Beckman, 6 Term Rep. 760. « 3 Bosw. 385. 
 
 s Edie V. East India Co., 1 W. Black. 295; ' 10 Mass. 26. 
 
 2 Burr. 1216. ' 8 Watts, 178. 
 
 * 14 Pick. 1«. " 1 Deady, 17. 
 
 30 
 
466 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Contradictory Expressions of Individual Judges. 
 
 vey, Thompson, J., said: "The established principles of law cannot be con- 
 trolled by custom." In Minnesota Central Bailway Company v. Morgan, 
 Miller, J., said: "No custom can be established which contravenes a well- 
 settled principle of law." In Baisin v. CTor*,* Millek, J., said; "A usage in 
 contravention of a well-settled and salutary rule of law cannot be sustained by 
 courts of justice." In Thompson v. Biggs,'' Mr. Justice Clifford said : " Usage 
 contrary to law, or inconsistent with the contract, is never admitted to contro j 
 the general rules of law or the real intent and meaning of the parties." In 
 Bone V. Mutual Safety Insurance Company,^ Sandford, J., said : " We find it 
 clearly settled that a general usage, the effect of which is to control rules of 
 law, is inadmissible ; so of one which contradicts a general rule of commercial 
 law." In Frith v. Barker,^ Kbnt, C. J., said: "Though usage is often resorted 
 to for explanation of commercial instruments, it never is, nor ought to be, 
 received to contradict a settled rule of commercial law." In Beed v. Bichard- 
 son,^ the court said: "The usage in question is objectionable and invalid, for it 
 tends to contravene the fixed rule of law." In Barnard v. Kellogg,'' Mr. Justice 
 Davis said: "It Is well settled that usage cannot be allowed to subvert the 
 well-settled rules of law." In South-Western Freight and Cotton Press Company 
 V. Stanard,^ Wagner, J., said: "Evidence of custom, however, is never 
 admissible to oppose or alter a general principle or rule so as to make the rights 
 and liabilities of parties other than they are at law." In Meaher v. Lufkin,' 
 Whbblbb, J., said: "There is nothing in the objection that proof of a custom 
 was admitted to vary the law of the land. That, it is admitted, cannot be done." 
 In Stillman v. Surd,^" Hemphill, C. J., said: " The custom, if any such exists, 
 is in contravention of established law." In Loekhart v. JSewees," Lipscomb, J., 
 said: "It has never, it is believed, been held that an acknowledged rule of law 
 could be subverted by local custom." In Brown v. Jackson,^^ Mr. Justice Wash- 
 ington said: "The law upon this subject is settled. It would, therefore, be 
 improper to let a contrary usage be proved, which is only proper in doubtful 
 cases." "The practice of the New York stock market, as testified to by one of 
 the witnesses," said Ewing, C. J., in a New Jersey case, " can have no weight 
 on this question. We are to seek what was required by the grave and steady 
 rule of law, not what would satisfy the eagerness of speculation, grasping its 
 object on one hand with bold temerity, and parting from it on the other with 
 suspicious haste. A mournful history tells us there were at that time in the stock 
 market many practices which neither the law nor good morals could uphold."" 
 In Inglehnght v. Sammond," Caldwell, J., said: "Evidence of custom may 
 properly be given to explain and give the proper effect to the contracts and acts 
 of parties, but it would be can-ying the doctrine too far to permit a custom to 
 change the title to property contrary to an established rule of law." In Smetz 
 V. Kennedy, '^^ Evans, J., said: "No custom or usage can be allowed which 
 repeals the law of the land." 
 
 J 52 Barb. 217. 8 44 jjo. 71. 
 
 ' « Md. 1S8. « 21 Texas, 383. 
 
 3 6 Wall. 663. >« 10 Texas, 109. 
 
 ' 1 Sandf. 137. u i xexas, 638. 
 
 " 2 Johns. 327. 12 2 \fa,&b. C. Ct. 24. 
 
 « 98 Mass. 216. IS MoCourry v. Suydam, 10 N. J. L. 245. 
 
 10 Wall. 383. M 19 Ohio, 337. « RUey,218. 
 
CUSTOMS IN CONFLICT WITH LEGAL RULES. 467 
 
 Banks and Banking. 
 
 These expressions are not ambiguous ; no other meaning can be given to them 
 except this : that a custom or usage which changes what would otherwise be the 
 situation of the parties, or alters to any extent their rights according to the 
 rules of law applicable to such cases, is invalid and ineffectual. The meaning 
 of the terms " rules of law," " principles of law," " settled law," " established 
 rules of law," as they are used by the judges whom we have just cited, is not 
 difficult to arrive at. They do not refer to the laws established by the legisla- 
 ture, and which we find In the statute-book; they refer to the rules adopted 
 and the doctrines established by the courts for the conduct of the citizen and 
 the preservation and enforcement of his rights — the precedents which we find 
 in the reports ; in short, the common law of the land. 
 
 § 227. Same — Conflicting Decisions. — But, as we have seen in former chap- 
 ters of this work, particularly in the chapter on Usage and Custom in Different 
 Eelations and Occupations,' evidence of custom or usage is most potent in modify- 
 ing or entirely altering the position of parties from what it would otherwise be, 
 judged by the ordinary rules of law applicable to such cases or transactions. 
 Nevertheless, this species of evidence is not always so successful, as the reported 
 adjudications in which custom and usage have been set up to affect certain^ 
 " established rules of law " applicable to particular relations vyill show. 
 
 §228. Banks and Banking — Usages against Legal Rules admitted. — In 
 the law of banks and banking, and negotiable and assignable paper, the following 
 legal rules have been controlled or altered by proof of a different usage in indi- 
 vidnal cases: 1. The general rules of law as to the time and place and mode of 
 making demand and giving notice of bills and notes.^ 2. The rules of law as to 
 the powers of bank officers and agents.^ 3. The rule that a bank receiving a check 
 for collection has until the close of banking-hours on the next business-day in 
 which to present it.* 4. The rule that a bank to whom a note is sent for collec- 
 tion need not notify all the indorsers.^ 5. The rule that a bank, acting as the 
 collecting-agent of another, has no right to receive in payment anything but 
 money.' 6. The rule that a banker, being bound to know the signature of his 
 customer, pays a forged check on him at his peril.' 
 
 §229. Same — Usages against Legal Rides rejected. — On the other hand, 
 in individual cases usages and customs inconsistent with the following rules of 
 law have been rejected by the courts: 1. The rule of law that negotiable paper 
 not payable instantly is entitled to days of grace; othervnse, not.s 2. The rule 
 of law that where a bank receives a sum on a general deposit, it is bound 
 to respond to the depositor, when called on for a like sum, in good money .» 
 3. The rule of law that where the holder of a bank-bill has voluntarily cut it in 
 two, for the purpose of transmitting it by mail, whereby one part is lost, he may 
 recover the full amount from the bank upon presenting the one half and proving 
 the loss of the other.'" 4. The rule of law that the purchaser of negotiable paper 
 
 > Ante, Ohap. HI. " ^^' Chap. HI., § 72. 
 
 3 Ante, Chap. HI., §§ 68, 69. ' ^»«e, Chap. lU., § 74. 
 
 » AnU, Ohap. m., §§ 65-67. ' ^»««. Chap, m., § 71. 
 
 * Ante, Chap, in., § 72. • -^^e- dap. in., § 7S. 
 
 » Ante, Ohap. m., S 72. '" -<«'«. Oiiap. m., { 75. 
 
468 WHEN IN CONFLICT WITH CONTEACTS, ETC. 
 
 Usages in Conflict with Legal Rules. 
 
 past due takes it subject to the equities of other persons; he can acquire no 
 better title than his transferor.' 5. The rule that money paid under a mistake 
 of fact can be recovered back,'' cannot be affected by a custom among banks 
 generally, and Insurance offices particularly, that no mistakes shall be rectified 
 in the receipt or payment of money unless the mistake is discovered before the 
 person paying or receiving leaves the office.' 
 
 § 230. Common Carriers — IJsaires in conflict wltli Rtaea ot Law admit- 
 ted. — In the law of common carriers the following rules have been controlled 
 by inconsistent usages: 1. The rule that a common carrier is one who under- 
 takes, for hire, to transport the goods of such as choose to employ him, from 
 place to place.* 2. The rule of law that the responsibility of the common carrier 
 commences with the delivery of the goods to him or to his authorized servants.* 
 3. The rule that the carrier remains liable for the goods as an insurer (with 
 exceptions) until he has made a legal delivery of them.' 4. The rule that in the 
 carriage of goods by water, the carrier, unless otherwise directed, must stow 
 them under deck.' 5. The rule that a carrier of goods by water is liable for 
 damage done to them in the hold through contact with other goods." 6. The 
 rule that the carrier's liability continues until he has made personal delivery of 
 the goods in his charge to whomsoever is properly entitled to receive them. 
 7. The rule that the carrier must give notice of the arrival of the goods." 8. The 
 rule that the goods must be delivered on a legal day." 9. The rule that an 
 express carrier must make personal delivery of the goods in his charge." 10. The 
 rule that on the refusal of the goods by the party to whom they are sent, the 
 expressman must give notice of such refusal to the consignee." 11. The rule 
 that, except in cases of emergency and necessity, a carrier has no authority to 
 sell the goods in his charge." 12. The rule that a carrier has no general lien 
 for charges on the goods in his hands.'* 13. The rule that credit given the cus- 
 tomer by the carrier beyond the time wh^n the goods are to be delivered, is 
 inconsistent with and will defeat the lien.'s 14. The rule that the common-law 
 liability of a carrier can be restricted only by means of a contract." 
 
 1 Ante, Chap. III., § 77. Ala. 568; Illinois, etc., Ins. Co. v. Pox, 53 m. 
 
 2 Filgor V. Penny, 2 Murph. 182; Lucas v. 151. 
 
 Worswick, 1 Moo. & R. 293; Osgood v. Jones, a Gallatin n. Bradford, 1 Bibb, 209; Me- 
 
 23 Me. 312; Baltimore, etc., E. Co. v. Faunce, ohanics', etc., Bank v. Smith, 19 Johns. 116. 
 
 6 Gill, 68 ; Bank of Commerce v. Union Bank, < Ante, Chap. III., § 78. 
 
 3 N. Y. 230; Henderson ». Planters' Bank, 11 6 Ante, Chap. III., § 79. 
 
 Rich. L. 44; Garland ti. Salem Bank, 9 Mass. • Ante, Chap. III.' § 83*. 
 
 408; Logan v. Sumter, 28 Ga. 242; Dickens v. i Ante, Chap. III.,' § 84.' 
 
 Jones, 6 Yerg. 483 ; West v. Houston, 4 Harr. 8 Ante, Chap. Hi', § 84! 
 
 170; Lawrence v. American National Bank, ' Ante, Chap. III., §§ 85, 86. 
 
 .54 N. Y. 432; Millett v. Holt, 60 Me. 169; Ver- 10 Ante, Chap. III., §§ 87I89.' 
 
 non V. West School District, 38 Conn. 112; " Ante, Chap. HI § 90 
 
 Duncan v. Berlin, 46 N. Y. 685; Kingston " ^n««. Chap. IIL,' §§ 94-86. 
 
 Bank V. BUinge, 40 N. Y. 391; Young ,.. " ^n«e, Chap. IIL, § 96. 
 
 Stabelln, M N. Y. 258; Northrop v. Graves, u Ante, Chap. HI., § 99 
 
 19 Conn. 548; Manchester v. Burns, 45 N. H. « Ante, Chap HI § 100 
 
 482; Holbrook v. Allen, 4 Fla. 87; GuUd v. w Ante, Chap III ' § lOo" 
 
 Baldridge, 2 Swan, 295; Walker v. Mock, 39 " Ante, Chap IH § 101 
 
CUSTOMS IN CONFLICT WITH UULKS OF LAW. 469 
 
 Corporations — Insurance. 
 
 §231. Same ^Usages in conflict with Rules of Law rejected. — But 
 the following rules have been maintained in the face of contradictory 
 usages: 1. The rule that where freight is paid in advance, and in con- 
 sequence of the capture or shipwreck of the vessel, or other cause not 
 imputable to the consignor, the goods are not carried to their destination, the 
 freight is not earned, and may be recovered back, unless there is an agreement to 
 the contrary.' 2. The rule that a bill of lading is like any other receipt, and, 
 so far as it is considered as such, may be explained or contradicted by parol. ^ 
 
 §232. Coi^oratlons — TTsases against Cominon-Law^ Rules admitted. — 
 In the law of corporations these rules have been modified or altered by usage 
 and custom: 1. The rule that a corporation can express its assent only by 
 means of its seal.' 2. The rule that where the charter of a corporation pre- 
 scribes the particular mode in which its contracts shall be made, that mode 
 mugt be pursued.* 3. The rule that no lien exists in favor of a corporation npon 
 the shares of a stockholder who is indebted to it.* 
 
 § 233. Insurance — Usages in conflict with Legal Rules admitted. — In the 
 law of insurance the following " established rules of law" have been controlled 
 by evidence of different customs: 1. The rule that a risk on a ship, or on 
 goods therein, commences only at the very port or place named in the policy as 
 that from which the ship is to sail, or where the goods are to be loaded, and 
 ends only when the ship has reached the port to which it is insured." 2. The 
 rule that the meaning of the parties to the policy is invariably understood to be 
 that the ship shouid proceed from one terminus of the voyage insured to the 
 other In a direct course, without touching at any intermediate point or pursuing 
 any intermediate adventure; therefore, if she do so without leave for that 
 purpose being expressly given in the policy, this, however trifling in extent or 
 duration, is a deviation, although the ship may afterwards return to her proper 
 course, and this will discharge the underwriter.' 3. The rule that the ship 
 must visit such ports in the geographical order of their distance from the ter- 
 minus or port of departure.* 4. The rule that a deviation simply for the 
 purpose of saving property will discharge the insurer.' 5. The rule that if 
 goods are necessarily thrown overboard, for the purpose of lightening the ship, 
 the loss is to be made good by the contribution of all, because insured for the 
 benefit of all, except as to the owner of goods loaded above deck.'" 6. The 
 rule that in a policy of marine insurance effected upon certain goods on an out- 
 ward voyage and their " proceeds " home, the word " proceeds " means the 
 game as " produce," viz. : something proceeding from, or produced by, some- 
 thing else, — the same amount or value of goods sold and converted Into money, 
 or goods purchased with such money, or exchanged for the original goods, — and 
 cannot include the identical goods brought home on the return voyage." 
 7. The rule that there can be no apportionment of the premium where the risk 
 
 1 Ante, Chap. III., § 98. * Ante, Chap. III., § 111. 
 
 2 Strong V. Grand Trunk E. Co., 15 Mich. ' Ante, Chap. III., 9 113. 
 S06. « Ante, Chap. III., § 112. 
 
 3 Ante, Chap. III., § 103. • Ante ; Chap. III., § 113. 
 * Ante, Chap. III., § 105. "> Ante, Chap. III., § 113. 
 ' Ante, Chap. III., § 106. " Ante, Cha|). III., § 114- 
 
470 WHKN IN CONrLICT WITH CONTRACTS, ETC. 
 
 Usages in Conflict with Legal Rules. 
 
 Is entire.' 8. The rule in the law of Are insurance that any alteration or change 
 in the risk, made subsequent to the insurance, and which has the effect of mate- 
 rially increasing the risk, will avoid the policy .« 9. The rule that the keeping 
 or use of articles prohibited by the terms of the policy will avoid it.^ 10. The 
 rule that where a life-policy provides that it shall be forfeited if the premium is 
 not paid on the particular day, the insurer is discharged if it is not paid on that 
 day.* 
 
 §234. Same — Usages In oonfllct with Legal Rules rejected. — On the con- 
 trary, usages to affect these rules have been rejected by the courts: 1. The 
 rule that, unless specially provided for in the policy, the insured is not bound to 
 inform the insurer of any change in adjoining premises, however much the risk 
 may be increased thereby .* 2. The rule that reinsurance is a contract of Indem- 
 nity to the reassured, and binds the reassurer to pay to the reassured the whole 
 loss sustained in respect of the subject insured, to the extent to which he is 
 reinsurer." 3. Where a fire-insurance company agreed in its policy that its 
 directors should " settle and pay to the assured all losses within three months 
 after notice shall have been given as aforesaid, and that the payment of the 
 loss ascertained should be made within the time prescribed by the charter, 
 without deduction from the sum decreed by the adjustment," proof of a usage 
 on the part of the company, in case of a total loss, to retain of the amount of 
 the ascertained loss two per cent per month on the balance of the premium-note, 
 from the date of the last assessment upon it until the expiration of the term of 
 the policy, was rejected. "The object and effect of the proof offered of the 
 usage in this case," said Woods, J., "were plainly to vary and limit the plain 
 and unequivocal terms of the policy, and to control and limit their construction 
 and legal effect. To give the evidence of the usage the effect claimed for it, 
 would be to allow the exact converse of the true and well-settled rule of law 
 upon this subject to prevail. It would be to hold that while the contract, in 
 express and unmistakable terms, provides that the whole loss shall be ascer- 
 tained and paid to the assured, the usage shall control the express terms and give 
 them the effect of a contract for the payment of a sum less than the whole 
 loss sustained. It would be to allow the usage to control an express written 
 contract and to limit its terms and effect, while it is well settled — in accordance 
 with sound reason, too — that a usage shall be regarded as waived by the express 
 terms of a contract when they are in conflict with each other." ' 
 
 §235. Landlord and Tenant — Customs against Law admitted. — In the 
 law of landlord and tenant these common-law rules have been altered by the 
 custom of the country: 1. The rule that "if a tenant for years, knowing the 
 end of his term, doth sow the land, and his term endeth before his crop is ripe, 
 the lessor, or he in reversion, shall have the crop, because the lessee knew the 
 certainty of his term, and when it would end."* 2. The rule that where there 
 
 1 Ante, Chap. IH., § 115. o Ante, oliap. III., § 123. 
 
 ' Ante, Ohap. III., § 119. 7 Swamsoot Machine Oo. v. Partridge, 26 
 
 » Ante, Oliap. III., § 118. N. H. 369. 
 
 4 Ante, Ohap. m., § m. « Ante, Chap. III., § 127. 
 
 s Ante, Chap. III., § 120. 
 
CUSTOMS IN CONFLICT WITH LEGAL RULES. 471 
 
 Principal and Agent. 
 
 Is no covenant in the lease by which the lessor undertakes to repair, he is not 
 bound to do so, and the lessee cannot make repairs and charge the cost to him.i 
 
 3. The rule that on the sale of property the vendee must pay for the convey- 
 ance.' i. The general rules as to fixtures between landlord and tenant.' 
 
 § 236. Contracts tor Personal Services — Customs against Law admitted. — 
 In the case of contracts for personal service, the old rule that, the contract being 
 entire, nothing can be recovered if it be but partially performed, may be altered 
 by proof of usage.* 
 
 §237. Same — Customs againat Law rejected. — In an early case in North 
 Carolina it was held that, the law being that the hirer of a slave, and not the 
 owner, was liable for medicine and medical services rendered the slave during 
 the term of the hiring,* this rule could not be changed by a particular custom 
 in a county that the owner should pay such expenses ; * and this principle was 
 extended in a later case to render of no account a local custom that if a female 
 slave was delivered of child during her term of hiring, the owner should allow 
 the hirer the sum of $10.' 
 
 §238. Partnership — Usages against LsgEil Rules admitted. — In the law 
 of partnership the following rules have been modified or altered by proof of 
 usage: 1. The rule that general reputation cauuot establish a partnership.^ 
 2. The rule that persons cannot be charged as partners unless they are actually 
 or Impliedly such.' 
 
 § 239. Principal and Agent — Usages in conflict with Bulea ol Law ad- 
 mitted. — These rules of law, as affecting the relation of principal and agent, have 
 been changed by proof of a different usage : 1. The rule that an authority to do 
 an act cannot be* delegated to another.'" 2. The rule that a factor has no 
 implied authority to sell except for cash." 3. The rule that a factor has no 
 authority to pledge the goods of his principal as security for his own debt.'* 
 
 4. The rule that the factor, unless authorized by his principal, cannot set off 
 his private debt to the vendee against the vendee's debt on the sale ; and the 
 principal will not be bound by such a transaction.'' 5. The rule that an agent 
 is not personally bound by a contract made by him for his principal." 
 
 §240. Same — Usages in conflict with Rules of Law rejected. — Other 
 rules In the same relation have not been permitted to be affected by incon- 
 sistent customs, viz.i 1. The rule that profits made by an agent out of the 
 principal's business belong to the principal, and not to the agent.'* 2. The rule 
 that an agent of the owner to sell property cannot be an agent for the pur- 
 chaser as veil, and receive pay from both." 3. The rule that an agent must 
 
 1 Ante, Chap. III., § 128. » Ante, Chap. III., § 141. 
 
 2 Ante, Chap. III., § 128. '» Ante, Chap. HI., § 146. 
 a Ante, Chap. III., § ISl. " Ante, Chap. HI., § 146. 
 
 * Ante, Chap. lU., § 137. '" -^nte. Chap. III., § 147. 
 5 Haywood r. Long, 5 Ired. L. 438. " Ante, Chap. III., § ISO. 
 
 • Jones V. Allen, 5 Ired. L. 273. '* Ante, Chap. III., § 154. 
 1 Cooper ti. Purvis, 1 Jones L. 141. '* Ante, Chap. III., § 152. 
 « Ante, Chap. IIL, § 140. " Ante, Chap. III., { 162. 
 
472 WHEN IN CONFLICT WITH CONTRACTS, KTO. 
 
 Usages in Conflict with Legal Rules. 
 
 follow the instructions of his principal.' 4. The rule that a person contracting^ 
 as agent will be personally liable where he makes the contract in his own name.' 
 
 § 341. Vendor and Purchaser — TTsagres against Legral Rules admitted. — 
 The following rules of law governing sales of personal property have been modi- 
 fied or altered by proof of a different usage, viz. ; 1. The rule that the mere 
 exhibition, at the time of the sale, of a sample of the goods does not of itself 
 constitute such a sale by sample as to subject the seller to liability upon an 
 implied warranty.' 2. The rule that a purchaser entitled to rescind a contract, 
 for fraud or other reasons, must rescind it in toto.* 3. The rule that where 
 goods are sold for cash, and the seller delivers them to the purchaser upon the 
 faith of his paying cash, and immediately demands it, but the buyer refuses to- 
 pay, the delivery is not absolute, but only conditional, and the seller may 
 reclaim, the title never having passed away from him.* 4. The rule that where 
 they are sold for cash, to be paid for on delivery, either in cash or commercial 
 paper, and they are delivered without exacting the money or the securities, the 
 delivery becomes absolute, and the title thereby vests in the purchaser.' 5. The 
 rule that where no time for the payment of goods sold and delivered is fixed by 
 the contract, the price becomes due and payable as soon as the delivery is com- 
 pleted.' 6. The rule that interest, in the absence of an agreement, is not 
 allowed upon unliquidated accounts for goods, wares, and merchandise, for 
 work done, or on book-accounts.^ 
 
 §242. Same — Usages against Legal Rules rejected. — But in the law of 
 sales, very many usages have been rejected when in conflict with the following 
 legal rules, viz. : 1. The rule that on sales of personal property, where the buyer 
 has an opportunity to inspect the commodity, and the seller is guilty of no 
 fraud, and is neither the manufacturer nor grower of the articles he sells, the 
 maxim caveat emptor applies, and the buyer takes the risk of the quality upon 
 himself.9 2. The rule that if the sample be fairly drawn from the bulk of the 
 goods, and the bulk corresponds with the sample, but there is a defect in both 
 sample and bulk, and this defect is unknown and uudiscernible, there is no 
 implied warranty against this defect, and the seller is not responsible."' 3. The 
 rule that upon the sale of an article by a manufacturer, there is au implied 
 warranty that it will answer the purpose for which it is made." 4. The rule 
 that on a simple pledge of stock to a broker as collateral security, the pledgee 
 has no right, without notice, to dispose of it because the pledgebr fails to comply 
 with his engagement.'^ 
 
 § 243. Miscellaneous —Usages contradicting Rules of Law admitted. — So 
 the general rules of law governing the question of negligence," or contributory 
 negligence," or nuisance, or fraud,'* or trespass,'" or the use of watercourses," or 
 
 ' ^»'«- ♦^hap. III., § 153. 10 A,ite, Chap. III., § 160. 
 
 ' ^"'«. Chap. III., § 154. n ^nte, Chap.'lll., § 161. 
 
 ' Ante, Chap. ILL, § 160. u ^„(e, Chap.'lII., § 162. 
 
 ' -<<««e. Chap. III., § 164. 13 ^tnte. Chap. III., §§ 169-172. 
 
 " Ante. Chap. III., § 165. 14 Ante, Chap. III., § m 
 
 « Ante. Chap. III., § 165. 15 Ante. Chap. III.. §§ 173, 174. 
 
 ' '^'"«. Chap. III., § 166. ,. Ante, Chap. III. § 175 
 
 « Ante. Chap. III., § 167. ., Ante, Chap. III., } 176. 
 » Ante, Chap. III., § 188. . » i°- 
 
CUSTOMS IN CONFLICT WITH LEGAL RULES. 473 
 
 Miscellaneous Rules R.'joclud. 
 
 the execution of the duties of an officer,' have in many Instances been controlled 
 by evidence of usage and custom. It has been held in Pennsylvania that the 
 common-law doctrine that fresh-water rivers in which the tide does not ebb or 
 flow belong to the owners of the banks, does not apply to the Susquehanna, or 
 the other large rivers of the State. But a custom that the owners of the banks 
 of the Susquehanna should have the exclusive right to fish in the river opposite 
 their shores was recognized.' 
 
 § 244. Same — Usages contradicting Kules of Law rejected. — In an Ala- 
 bama case, it was held to be the law that when a party-wall separating the 
 buildings of adjacent proprietors, and erected by them at their joint expense, is 
 destroyed by fire, there is no implied agreement between them, nor any legal 
 obligation, to rebuild another wall on the same foundation; but one rebuilding 
 on the same foundation could not compel a purchaser from the other proprietor 
 to contribute to the cost of the wall, or to make compensation for using it in the 
 subsequent erection of a building on the same lot; and that a usage on the part 
 of lot-owners was not admissible to alter this rule.' In a Minnesota case, a 
 custom by which a vendor of an article warranted to be genuine, but which 
 turns out to be spurious, may satisfy his obligation by paying in kind instead of 
 responding in damages according to the rules of the common law, was held to be 
 invalid.* The rule that a second mortgagee with notice of a first mortgage is 
 not affected by anything advanced subsequent to his mortgage with notice,* it is 
 held in England, cannot be altered by a contrary custom between brewers and 
 distillers and their customers.^ Where the law fixes the end of a lease, evidence 
 of a different custom is incompetent.' What is a good tender, it was held in 
 Texas, could not be shown by local usage.^ 
 
 § 245. The Necessity for reviewing the contradictory Cases. — The student 
 will doubtless have already observed that the rules of law which evidence of 
 usage and custom has been offered or introduced to affect may be divided 
 into distinct classes. In the first are those rules which, without a dissenting 
 decision, have been modified or controlled, as occasion arose, by proof of a 
 different usage. The second comprises those rules upon which there is a conflict 
 of authority; one case holding that they may be modified by usage, another that 
 they can not. In the third class fall those rules of law which have been attacked 
 by this species of proof, but which have not yielded; those, in short, where, 
 after a diligent examination, we have been unable to find a single judicial 
 decision where evidence of usage or custom to control their legal effect has not 
 been rejected. The first class requires no comment; the second maybe left 
 to take care of itself, the opinions of the judges in the aflirmative being in 
 every case a sufilcient answer to the reasons given in the other cases against 
 
 ' ^nle, Cliap. III., § 177. Eq. il>9. " The evidence of custom," said 
 
 2Cai-soiu). Blazer, 2 Binn. 475. Komilly, M. R., in tiK' la*t ■•ase,"is merely 
 
 ' Antomarchi v. Russell, fiS Ala. 356.' evidence of custom ti give to a. wilite i doc- 
 
 * Johnson v. Gilfillan, 8 Minn. 39.i. utucnt a meaning other than that affixed to 
 
 n Hoi)kinsonii.Rolt,9 li. L.Cas. 514; Shaw it by the decision of the House of Lords." 
 
 V. Neale, 6 H. L. Oas. 631. ' Jackson v. Beling, 22 La. An. 377. 
 
 « Daun V. City of London Brewery Co., L. » Lookhart v. Devvecs, 1 Texas, 635. 
 
 B. 8 Eq. 166; Monzies ii. Lighttoot, L. B. U 
 
474 WHEN IN CONFLICT WITH CONTEACTS, ETC. 
 
 The Contradictory Cases Reviewed. 
 
 their admissibility. But as regards the third class, we liave thought it well in 
 this section, at the risk of repeating the language of courts and judges already 
 set out in former portions of this book, to bring together those cases which have 
 decided that certain rules of law cannot be altered or controlled by a different 
 custom, wherever, and wherever only, no case sustaining the admissibility of 
 usage in conflict with that particular rule can be found in the reports. These 
 cases are not numerous ; but the fact that they are, on principle, in direct conflict 
 both with the weight of authority and with the views of the writer, would seem 
 to justify their examination in this place. They will, therefore, be found in the 
 next section. 
 
 § 246. The Facts and the Opinions of the Judges In the above Cases. — 
 In Marine Bank of Chicago v. Chandler,^ the defendant asked the following in- 
 struction, which was refused : " If the jury believe from the evidence that it is 
 the usage and custom of banks and bankers to mingle all the funds received by 
 them in a common mass, and that according to such usage the defendant mixed 
 the funds received on account of plaintiff with its own, and that its own funds, 
 with which plaintiff 's were mingled, were composed of the notes of the banks 
 of Illinois received by it in its ordinary course of business for itself and its cus- 
 tomers, which were afterwards depreciated in value from causes not within 
 defendant's control, then the loss by such depreciation in defendant's funds 
 must fall on him." In affirming the ruling and verdict below, Walker, J., said: 
 " Nor can the special custom of banks in a particular locality change the laws of 
 the land regulating the value of the currency and fixing the standard value of 
 the current coins. That parties may contract to receive any commodity in lieu 
 of money in payment of indebtedness, is undeniably true. This can only be 
 done by special agreement, and not by usage. No custom can compel a creditor, 
 in the absence of a special agreement, to receive anything but the constitutional 
 currency of the country. The fact that the business men of the particular place 
 have been In the habit of receiving depreciated paper money in payment of their 
 demands by no means proves that all creditors in that locality have agreed to 
 receive the same, much less a person residing hundreds of miles distant. To 
 have such an effect, a special agreement must be proved." In Thompson v. 
 Biggs,'' the plaintiff had for a series of years deposited coin and paper money 
 with the defendant, a banker. Coin at the time had one value, and paper money 
 another and less value, and the different deposits were entered in his pass-books 
 as of "coin " and "paper " respectively. Debts being at this time payable in 
 " coin " only, the banker requested the plaintiff to make his full balance coin, 
 which was done. Subsequently an act was passed making certain treasury- 
 notes lawful money for the payment of debts. The plaintiff continued deposit- 
 ing "coin" and "treasury-notes," then regarded as currency, and both were 
 entered accordingly. He afterwards drew for " coin" — the bulk of coin 
 balance deposited before the act. Coin was refused, and tender made of 
 treasury-notes. In an action brought for the market value of the coin drawn 
 for, — the teller of the bank having testified that, after the act making treasury- 
 notes a legal tender, his employer uniformly made with customers depositing 
 with them a difference, in receiving and paying their deposits, between coin and 
 
 1 27 111. 526. i 6 Wall. 663. 
 
USAGES IN CONFLICT WITH LEGAL RULES. 475 
 
 The Coatradictory Cases Eeviewed. 
 
 paper money, and in all cases when the deposit was in coin they paid the checks 
 of their customers in coin when they called for coin ; otherwise, treasury or 
 bank notes, — the plaintiff offered evidence to show that the usage and mode of 
 dealing between the said parties as stated by the teller was the usage of all the 
 banks in that place. This evidence was considered in the Supreme Court of the 
 United States as properly rejected,. " The general rule of law is," said Mr. 
 Justice Cliffokd, " that if a merchant deposits money with a bank, the title to 
 the money passes to the bank, and the latter becomes the debtor of the merchant 
 to that amount ; and it is not perceived that the evidence offered, if it had been 
 admitted, could have had any other effect than to control the general rule of 
 law, as it is not pretended that the evidence showed a special deposit. Viewed 
 in any light consistent with the other evidence in the record, the testimony was 
 either entirely immaterial or inadmissible, as tending to control the well-settled 
 rules of law." In Woodruff v. Merchants' Bank,^ a bill of exchange was in this 
 form : — 
 <' |1,500. Detroit, November 15, 1838. 
 
 " Sixty days after date, pay to the order of Daniel Green, Esq., fifteen hun- 
 dred dollars, at the Phoenix Bank in the city of New York, value received, which 
 place to account. 
 
 "Your ob'd't serv't, 
 
 " L. GoDDARD, Detroit, Mich. 
 
 "To Wm. H. Griswold, Esq., Cashier Oakland County Bank, Mich." 
 
 It was contended that, according to the custom of bankers and merchants in 
 New York, this was a check, and was not entitled to the days of grace allowed 
 on promissory notes and bills of exchange. But the Supreme Court said: 
 " The effect of the proof of usage as given in this case, if sanctioned, would be 
 to overturn the whole law on the subject of bills of exchange in the city of New 
 York. We need scarcely add, even if the witnesses were not mistaken, and the 
 usage prevails there as testified to, it cannot be allowed to control the settled 
 and acknowledged law of the State in respect to this description of paper." Iii 
 Morrison v. Bailey,'^ a similar instrument was sued on, viz. : — 
 " 300. Cleveland, Ohio, June 30, 1853. 
 
 " Wicks, Otis & Brownell : Pay to L. F. BuTgess, on the thirteenth day of July, 
 
 1853, or order, three hundred dollars. 
 
 "E.B.Bailey." 
 
 The testimony of a number of bankers showed a uniform custom on their 
 part, in Cleveland, to regard drafts in this form as checks, and not entitled to 
 days of grace. But the Supreme Court of Ohio, following Woodruff v. Mer- 
 chants' Bank, held that " any supposed usage of banks in any particular place 
 to regard drafts upon them payable at a day certain after date as checks, and 
 not entitled to days of grace, is inadmissible to control the rules of law." 
 In Allen V. State Bank,^ the plaintiffs alleged that they were partners, and that 
 one of them, having received a number of the defendant's bank-bills in the col- 
 lection of debts due the firm, for the purpose of securing their ^afe transmission 
 to the other, cut each of them into two parts, and enclosed the first halves on 
 one day and the other halves on another day in letters by the jjublic mail ; th^t 
 
 1 25 Wend. 673. « 6 Ohio St .13. » 1 Dev. & B. Bq. 8. 
 
476 WHEN IN CONFLICT WITH CONTKACTS, ETC. 
 
 The Contradictory Cases Reviewed. 
 
 the first parcel came duly to hand, but that the second was lost; that as soon as 
 the loss was ascertained they presented to the defendants the halves received, 
 offered indemnity against any loss by reason of the missing halves, and demanded 
 payment of the whole amount of the bills ; that the defendants paid them one- 
 half of the sum, but refused to pay more. The bill prayed that the defendants 
 might be required to pay the balance. The defendants replied, inter alia, that 
 it was their custom to pay the holder of a half note, on presentation at their 
 counter, one-half of the amount of the note, which custom was known to their 
 dealers, and particularly to the plaintiffs; that this custom was adopted from 
 regard to public convenience, and not upon a supposition of their liability, for 
 they contended that no liability could be enforced except on the presentation of 
 the entire note. The court decreed for the plaintiffs. Gaston, J., who delivered 
 the opinion, said: "While the two parts exist and are retained by the lawful 
 holder, the rights and liabilities of the parties remain precisely the same as 
 before the division. If one of the parts be afterwards lost or destroyed, the right 
 of the former holder of the note and the obligation of the maker are the same as 
 though the whole note had been destroyed. Had the notes in this ease been put 
 into the mail in their original state, and then the loss occurred, it might with 
 equal plausibility have been urged that the plaintiffs, for their own convenience, 
 took upon themselves the risk of loss, and can therefore demand payment only 
 according to the letter of the engagement. If the law warranted such a usage 
 as that alleged by the defendants, of paying upon a half note, by whomsoever 
 presented, half the amount of the note, the risk of injury to one or the other of 
 the parties would be the same in the transmission by mail of a divided as of a 
 whole note. In the former case there would be, indeed, a double chance of 
 casualties, but only a danger of half a loss upon each casualty. Such a usage, 
 however, is wholly unsupported by law. The holder of a half note, as such, has 
 no right to any part of the money. Such a usage has a pernicious tendency to 
 facilitate the receipt of money by the dishonest holders of half notes, and thereby 
 creates or multiplies temptations to dishonesty. The transmission of divided 
 notes by several mails diminishes the danger of injury as to one of the parties 
 and does not increase it as to the other, is for the benefit of commerce, affords 
 additional security against dishonesty by lessening the inducement to commit it, 
 and ought in no manner to affect the rights of the lawful owners of the notes." 
 In Vermilye v. Adams Express Company,^ a number of United States treasury- 
 notes which had been stolen from the express company were purchased by a firm 
 of bankers after the date at which, on their face, they were payable or convert- 
 ible into bonds. It appeared that the company, after the loss, had been prompt 
 in giving warning of the theft, by advertising in the newspapers and delivering 
 notices to the principal brokers, including the defendants. The latter intro- 
 duced evidence to show that notes of the kind in question continuea to be 
 bought and sold by bankers and brokers after they had become due ; that it was 
 not customary for dealers in government securities to keep records or lists of 
 the numbers or descriptions of bonds alleged to have been lost, stolen, or 
 altered, or to refer to such lists before purchasing such securities; that it would 
 be impracticable to carry on the business of dealing in government securities if 
 it were necessary to resort to such lists and make such examination previous to 
 
 > 21 Wall. 139. 
 
USAGES IN CONFLICT WITH LEGAL RULES. 477 
 
 The Contnulictory Cases Reviewed. 
 
 purchase ; and that the purchase of the notes in question was made in the ordi- 
 nary and usual mode in which such transactions are conducted. It was held by 
 the Supreme Court of the United States that, as to such overdue paper, a pur- 
 chaser takes subject to the rights of antecedent holders, to the same extent as 
 in the case of other paper bought after maturity, and that the notes could be 
 recovered of the defendants. " Banliers, broilers, and others," said Mr. Justice 
 MiLtBK, " cannot, as was attempted in this case, establish by proof a usage or 
 custom, in dealing in such paper, which in their own interest contravenes the 
 established commercial law. If they have been in the habit of disregarding that 
 law, this does not relieve them from the consequences, nor establish a different 
 law." In Gallatin v. Bradford,^ B. was the cashier of the Kentucky Insurance 
 Company at Lexington. G. having obtained from the company the discount of 
 his note for $300, he drew a check on B., in the name of F. & G., for the sum of 
 $296.85, being the amount he was entitled to receive on the note. B. paid him 
 the amount of the check, as he supposed, but a few hours after it was discovered 
 by a clerk in the office that G. had, by mistake, been overpaid the sum of $100. 
 G. having refused to pay back the money, B. brought an action to recover it. 
 On the trial, evidence was offered, and rejected, going to prove a custom among 
 banks and insurance companies not to rectify mistakes in the receipt or payment 
 of money unless discovered before the person receiving or paying leaves the 
 office. On appeal to the Court of Appeals of Kentucky, the ruling was affirmed. 
 "If such a custom exists," said Trimble, J., "it is contrary to law, and ought 
 not to meet with the sanction of a court of justice. The law declares that money 
 received through mistake shall be refunded, and this rule of law is founded on 
 morality, which makes part of the law of the land. Would it not be as immoral 
 and unjust, it a mistake were made in the receipt or payment of money at a bank, 
 to hold the money obtained by such mistake, although not discovered until after 
 the person paying or receiving had got out of the door, as if the mistake had 
 been before discovered ? There surely can be no difference in morality, and the 
 law makes none. Such a custom in banking institutions may be an evidence of 
 avarice, but not of the practice of justice among those concerned. We have no 
 hesitation that if a mistake were made in favor of the insurance company, and 
 they were to allege such a custom in bar of the correction of the mistake, the 
 law would not sanction an attempt so palpably unjust." In Emery v. Dunbar^' 
 the defendant's ship, on which were the plaintiffs' goods, was destroyed by a 
 Confederate cruiser. In a suit for the freight, which they had paid before the 
 saUing of the vessel, the defendant set up " that, at the time of the payment of 
 the freight, it was, and from time immemorial thereuntil had been, the custom 
 and usage of the United States of America and of the State of New York, and of 
 the ship-owners, shippers, and merchants of, and of the shippers from the said 
 United States of America and the State of New York, that said freight so paid in 
 advance is paid unconditionally, and not subject to the risk of the voyage, and is 
 not repaid, but is retained by the ship-owner, provided that the goods be taken on 
 board and the voyage commence, or have commenced." The plaintiff demurred 
 to this answer; the demurrer was sustained, and on appeal this ruling was 
 affirmed. " Where a general rule or principle of law like this," said the Supreme 
 Court, "has been long and well established, it cannot be controlled by proof of 
 
 11 Bibb, 209. 2 1 Daly. «S. 
 
478 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 The Contradictory Cases Reviewed. 
 
 any usage to the contrary. This disposes of the defendant's answer." In Frith 
 V. Barker,''- one hundred and ninety hogsheads of sugar had been shipped at S., 
 to be delivered at N. ; but during the voyage, owing to a leak in the ship, the 
 contents of fifty of them were lost, and but one hundred and forty were received 
 by the consignee, who refused to pay freight on the residue. In a suit for the 
 freight on the fifty hogsheads, the plaintiff offered to prove that, by the usage of 
 merchants at N., freight was payable for the empty casks, under the circum- 
 stances of this case. A verdict being taken by consent for the full amount, sub- 
 ject to the opinion of the Supreme Court, it was there held that the plaintiff was 
 entitled to a verdict for only one hundred and forty casks. Kent, C. J., who 
 delivered the opinion of the court, after stating the law to be that no freight is 
 due for gooods which are destroyed during the voyage, said : " The next point 
 is, whether evidence of usage in contradiction to this rule was admissible ; and 
 if it was, whether the usage proved went the length of establishing that freight 
 was in this case due for the sugar that was destroyed. » * * The testimony 
 did not show that this usage existed, if the contents of the casks had been lost 
 by the means of the sea perils during the course of the voyage. I presume that 
 no such usage exists. It would be repugnant to the general rule of the mari- 
 time law. The true import of the testimony offered was that the master is 
 entitled to his freight, notwithstanding the ordinary diminution or waste of an 
 article, arising either from its nature or the defect of the cask. It becomes, 
 therefore, immaterial to examine whether this evidence of usage was or was not 
 strictly competent; but, as the question is frequently suggested, it may be 
 proper to observe, that though usage is often resorted to for explanation of 
 commercial instruments, it never is or ought to be received to contradict a 
 settled rule of commercial law." In Stebbins v. Globe Insurance Company,'^ a 
 policy of fire insurance contained no condition requiring the assured to give 
 notice of changes in adjoining premises. On the trial, evidence was offered, and 
 rejected by the trial court, which went to show that by a usage in New York, 
 where the contract was made, upon the occurring of any circumstance whereby 
 the risk was increased by the act of the assured after the effecting of the insur- 
 ance, notice thereof was to be given to the insurers, so that they might have 
 the option of continuing the policy or annulling it; on appeal the ruling was 
 affirmed. The decision of the higher court did not rest altogether upon its being 
 a usage local to New York, but upon the ground that " if it were a general usage 
 it could not be given in evidence to alter the legal operation and effect of the 
 policy." In Hone v. Mutual Safety Inswrance Company,'' it was held not compe- 
 tent to limit a contract of reinsurance by proof of a usage in the city of New 
 York by which the reassurer paid the same proportion of the entire loss sus- 
 tained by the original insured that the sum reinsured bore to the first insurance 
 written by the reinsured. " The word ' reinsure,' " said Sandford, J., " has a 
 definite meaning settled in the law for two centuries past, and having the same 
 meaning in its ordinary and popular sense. It is equally effective with the word 
 'insure,' and it has been decided that the word 'insure ' may be used in a policy 
 of reinsurance with the same force and validity. The proof offered attempts to 
 wrest the term 'reinsure' from the established sense, and make it correlative, 
 as between the first insurer and the reinsurer, whenever the former insures 
 
 ' 2 Johns. 827. a 2 HaU, 632. » 1 Sandf . 187. 
 
USAGES l^ CONFLICT WITH LEGAL KULES. 479 
 
 The Contradictory Cases Eeviewed. 
 
 more than the latter, with the distinct and different contract of double insurance. 
 In our view, it seeks to vary an express agreement between these parties couched 
 in plain language, having an established legal as well as conventional meaning, 
 and we are entirely clear that the testimony of usage ought not to be received." 
 In Diplock v. Blackburn,^ the plaintiffs were the executors of the captain of a 
 ship, of which the defendant was the owner, and it appeared that, when at the 
 Cape of Good Hope, the captain had occasion to draw a bill upon England on 
 account of the ship, for the sum of £1,500, and on account of the exchange at 
 the time he received as premium the sum of £134. The counsel for the plaintiffs 
 contended that this money belonged to the testator, and offered to call witnesses 
 to prove that it was usual for the captain of a ship. In such cases, to be allowed 
 for his own benefit any advantage arising from the state of the exchange. But 
 Lord Ellenboeough ordered a nonsuit, saying: " I am clearly of opinion that 
 this premium belonged to the owner, and not to the captain. If a contrary 
 usage has prevailed, it has been a usage of fraud and plunder. What pretence 
 can there be for an agent to make a profit by a bill upon his principal? This 
 would be to give the agent an Interest against his duty. I believe that in this 
 very way servants of the public abroad have been guilty of enormous pecula- 
 tion. The testator was undoubtedly bound to debit himself for the £134; as 
 much as for any other sum of money he received on the defendant's account." 
 In Minnesota Central Bailroad Company v. Morgan,' a custom among insurance 
 agents that they are entitled to all dividends declared by mutual companies, in 
 lieu of other compensation for effecting the insurance, was held bad. "No 
 custom," said the court, " can be established which contravenes a well-settled 
 principle of law. It has been the settled doctrine of the courts, both of law 
 and equity, for centuries, that an agent cannot appropriate to his own use any 
 portion of the profits arising from the business of his principal. The custom 
 proposed to be established overrides this rule of law, and authorizes the agent <■ 
 not to appropriate to himself a part only, but the whole of the property arising 
 from the business of his principal. Such a custom needs only to be stated to be 
 repudiated. If tolerated, it would lead to the grossest abuses. Insurance- 
 brokers would be induced to become members of mutual insurance companies ; 
 all property intrusted to them would be insured in these companies, not inf i e 
 quently without regard to expense, or even the responsibility of the company, 
 so that it should exist long enough to enable them to dispose of the dividends 
 which might be awarded to them. The rights of all the parties are best secured 
 by requiring the broker to charge such commissions as he may be fairly entitled 
 to, and permitting the customer to take whatever profits may be earned in 
 the course of the business." In Eaisin v. Clark,^ the Court of Appeals of 
 Maryland rejected evidence of a custom among brokers in the city of Baltimore 
 that in exchanges of real estate they are entitled to a commission of two and a 
 half per cent from each party on the amount or value of the property received. 
 Said Mlllbr, J. ; " It is a general rule that a party cannot, in any agency of this 
 kind, act as agent or broker for both vendor and vendee in respect to the same 
 transaction, because in such case there is a necessary confiict between his 
 interest and his duty. The vendor, in the employment of an agent to sell Ms 
 property, bargains for the disinterested skill, diligence, and zeal of the agent for 
 
 1 8 Camp. 43. ' 52 Barb. 217. ' « M»: 168, ante, p. 431. 
 
480 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 Tho Contradictory Cases Reviewed. 
 
 Ms own exclusive benefit. It is a confidence necessarily reposed in the agent 
 that he will act with a sole regard to the interest of the principal, as far as he 
 lawfully may. The seller of an estate is presumed to be desirous of selling it 
 at as high a price as can fairly be obtained for it, and the purchaser is equally 
 presumed to desire to purchase it for as low a price as he may. The interests of 
 the two are in conflict. Emptor emit quam minimo potest; venditor vendit quam 
 maxima potest. But If the same party be allowed to act as agent for both, it 
 becomes his interest to have this maxim reversed, or at least to sacrifice the 
 interests of one or both of his principals in order to advance his own, by receiv- 
 ing double commissions. Hence the law will not permit an agent of the vendor, 
 whilst that employment continues, to assume the essentially inconsistent and 
 repugnant relation of agent for the purchaser. * * » After what has been 
 said, it Is hardly necessary to add that the usage or custom relied on cannot 
 avail the appellant. A usage in contravention of a well-settled and salutary rule 
 of law cannot be sustained by courts of justice." In Farnsioorth v. Hammer,'^ a 
 similar custom among the brokers of Boston was rejected in the Supreme Judi- 
 cial Court of Massachusetts, Bigelow, C. J., delivering the opinion of the 
 court, and using this language : " The principle on which rests the well-settled 
 doctrine that a man cannot become the purchaser of property for his own use 
 and benefit which Is intrusted to him to sell, is equally applicable when the same 
 person, without the authority or consent of the parties interested, undertakes 
 to act as the agent of both vendor and purchaser. The law does not allow a 
 man to assume relations so essentially Inconsistent and repugnant to each other. 
 The duty of an agent for a vendor is to sell the property at the highest price ; of 
 the agent of the purchaser, to buy it for the lowest. These duties are so utterly 
 irreconcilable and conflicting that they cannot be performed by the same person 
 (Without great danger that the rights of one principal will be sacrificed to pro- 
 mote the interests of the other, or that neither of them will enjoy the benefit of 
 a discreet and faithful exercise of the trust reposed in the agent. As it cannot 
 be supposed that a vendor and purchaser would employ the same person to act 
 as their agent to buy and sell the same property, it Is clear that it operates as 
 a surprise on both parties, and is a breach of the trust and confidence to be 
 reposed in the agent by them respectively, if his intent to act in the same trans- 
 action as agent of both is concealed from them. It is of the essence of his 
 contract that he will use his best skill and judgment to promote the interest of 
 his employer. This he cannot do when he acts for two persons whose interests 
 ure essentially adverse. He is, therefore, guilty of a breach of his contract. 
 Nor is this all. He commits a fraud on his principals in undertaking, without 
 their assent or knowledge, to act as their mutual agent, because he conceals 
 from them an essential fact, entirely within his own knowledge, which he was 
 bound, in the exercise of good faith, to disclose to them. Such being the well- 
 settled rule of law. It follows that the evidence offered by the plaintiff was 
 inadmissible. A custom or usage, to be legal and valid, must be reasonable and 
 consistent with good morals and sound policy, so that parties may be supposed 
 to have made their contracts with reference to it. If such a usage is shown to 
 exist, then it becomes the law by which the rights of the parties are to be regu- 
 lated and governed. But the usage on which the plaintiff relied was wanting in 
 
 > 1 Allen, 491. 
 
USAGES IS CONFLICT Willi LEGAL RULES. 481 
 
 The Contradictory Cases Reviewed. 
 
 these essential elements. It would be unreasonable, because if established it 
 would operate to prevent the faithful fulfilment of the contract of agency. It 
 would be contrary to good morals and sound policy, because it would tend to 
 sanction an unwarrantable concealment of facts essential to a contract, and 
 ■operate as a fraud on parties who had a right to rely on the confidence reposed 
 in their agents." In Magee v. Atkinson,^ A., a broker employed by B. to sell 
 -certain railway shares, agreed with C, D.'s broker, to sell him fifty shares, of 
 which A. afterwards informed his cleric at his office, who made an entry in his 
 book as of a sale from A. to C, and a contract-note to that effect was sent to C. 
 
 A. subsequently saw the entry in the book, and altered it by writing in the name 
 of B. as seller. Another note was accordingly sent the same evening or the 
 next morning to C, but C. received them both together; he did not return the 
 ^rst note, nor did A. request it. In an action by D. against A. for breach of the 
 -agreement in not completing the sale, Patteson, J., left it to the jury to say 
 whether the second note was a correction of a mistake in the first, and told the 
 jury that If the defendant entered into a written contract in his own name, he 
 ■could not afterwards set up that he was acting merely as a broker, and that, 
 jilthough known to be a broker, if he signed the contract in his own name he 
 was liable. He also rejected evidence that it was the custom in Liverpool to 
 send in brokers' notes without disclosing the principal's name. The plaintiff 
 having recovered a verdict, the direction and ruling of the trial judge were ' 
 .affirmed by the court in banc. "The custom offered to be proved," said 
 Aldeeson, B., " is a custom to violate the common law of England." In 
 Tmeman v. Loder,' L., a merchant residing at St. Petersburg, carried on a 
 business in London through H. H., having ceased to represent L., contracted 
 with T. to sell him tallow, intending to make the conti'act for himself, but T. 
 thought him an agent for L., as before. The contract was made by W., a broker 
 acting for both. He signed bought-and-sold notes, the former beginning, 
 ^'Bought for T.," and the latter, " Sold for H. to my principals." It was held 
 thatL. was liable for the non-delivery of the tallow, and that evidence of a cus- 
 tom in the tallow trade that " a party might reject the undisclosed principal, and 
 look to the broker for the completion of the contract, was inadmissible." In 
 Barnard v. Kellogg,' A., a wool-broker in Boston, sent to B., a wool-dealer in 
 Hartford, samples of foreign wools in bales, which he was selling on commis- 
 sion, and B. offered to purchase at the prices stated, if equal to the samples. A. 
 accepted the offer, provided B. would come to Boston and examine the wool. 
 
 B. went to Boston, and after examining a portion of the bales (and having the 
 opportunity to examine all and open them, which he declined), purchased the 
 wool. It proved, however, unknown to A.'s principal, to have been deceitfully 
 packed, and much in the interior of the bales was rotten and worthless. In an 
 action brought by B. against the principal to recover damages, it was held by 
 the Supreme Court of the United States that the rule of caveat emptor applied, 
 and that evidence was not admissible to control that rule, and to show that by 
 the custom of merchants and dealers In wool in bales in Boston and New 
 York, — the two principal markets in the country for wool, — there is an implied 
 warranty by the seller to the purchaser that the wool is not falsely or deceit- 
 
 1 2 Mee. & W. 4M. ' 11 Ad. & E. 589. » 10 Wall. 383, mtte, p. 424. 
 
 31 
 
482 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 The Contradictory Cases Reviewed. 
 
 fully packed. "It is apparent," said Mr. Justice Davis, "that the usage in 
 question was inconsistent with the contract which the parties chose to make for 
 themselves, and contrary to the wise rule of law governing the sales of personal 
 propefty. It introduced a new element into their contract, and added to it a 
 warranty which the law did not raise, nor the parties intend it to contain. The 
 parties negotiated on the basis of caveat emptor, and contracted accordingly. 
 This they had the right to do ; and by the terms of the contract the law placed 
 on the buyer the risk of the purchase, and relieved the seller from liability for 
 latent defects. But tliis usage of trade steps in and seeks to change the posi- 
 tion of the parties, and to impose on the seller a burden which the law said, on 
 making his contract, he should not carry. By this means a new contract is 
 made for the parties, and their rights and liabilities under the law essentially 
 altered. This, as we have seen, cannot be done. If the doctrine of caveat 
 emptor can be changed by a special usage of trade In the manner proposed by 
 the custom of dealers in wool in Boston, it is easy to see it can be changed in 
 other particulars, and in this way the whole doctrine frittered away." In DoM 
 V. Farlnw,' a usage in the hide and leather trade in Boston to impliedly warrant 
 all goods to be of merchantable quality was rejected. "The decisive objection 
 to its recognition," said Bigelow, C. J., "is that it embraces an element 
 directly contrary to the ancient and well-established rule of the common law, 
 that a vendor cannot be held responsible for the quality of goods sold, if he 
 makes no warranty or representation concerning their nature, condition, or mer- 
 chantable value. In other words, it abrogates to a, certain extent the maxim 
 caveat emptor, and puts on the vendor the burden of warranty, although he may 
 be ignorant of the quality of the articles, or may have had no means of ascer- 
 taining their condition or value, and may have had no intention of selling the 
 articles with warranty. Such a nsage is very like the one relied upon in the 
 leading case of Thompson v. Ashton,' which was held invalid and of no effect, 
 because it tended to introduce vagueness, confusion, and uncertainty into the 
 rules regulating the rights and obligations of parties under contracts for the 
 sale of meruhandise." In Thompson v. Ashton,^ which was decided by the 
 Supreme Court of New York in 1817, the plaintiff's agent went to the store of 
 the defendant to purchase crockery-ware, and the latter sold him forty-six crates 
 o( crocbery-ware,according to the printed catalogue of certain auctioneers in 
 whose store the crockery was for sale, which catalogue conformed to the invoice. 
 The agent did not open the crates, but after they were sent to the plaintiff 
 several of them were found to be bad, consisting of ware of an inferior quality. 
 The ijlaiutiff desired to rescind the sale, but the defendant refusing, he brought 
 an acUoii for the fraud, and on the trial offered to prove that it was the custom 
 and usage of merchants in this article that the purchaser purchased and the 
 seller sold on the invoices without opening the crates or examining the ware in 
 them, and that it was the uniform understanding in the trade, in such transac- 
 tions, that the exhibition of the invoices amounted to an undertaking on the 
 part of the seller that the ware was good and merchantable. The trial judge 
 rejected this evidence, and the plaintiff was nonsuited. On appeal, the court 
 sustained the ruling, saying: "The evidence offered of a usage or custom in 
 relation to the sale of crockery-ware was properly rejected. No custom in the 
 
 ' 11 Allen, 42G. « 13 Johns. 416. s Supra. 
 
USAGES IN CONFLICT WITH LEGAL RULES. 483 
 
 The Contradictory Cases Reviewicl. 
 
 sale of any particular description of goods can be admitted to control the gen- 
 eral rules of law. Such a principle would be extremely pernicious in its conse- 
 quences, and render vague and uncertain all the rules of law in the sale of 
 chattels." In Dickinson v. ©o?/,' a sale had been made of unprinted satinet. 
 cloths purchased of the manufacturers by sample, and it appeared that the bult 
 of the goods was not equal to the sample ; that both the sample and the bulk of 
 the goods were damaged by mildew, and that the defect was latent and could 
 not be discovered until the goods were printed. The defendant offered evidenca ,. 
 in an action for the price of the goods, of a usage of merchants by which, ira 
 such cases, the seller should make good to the purchaser the damage occasioned! 
 by the defect. The court admitted this evidence, and the jury, in answer tO' 
 special questions, found that the usage existed ; that there was a defect in the 
 goods; that it diminished their value in the sum of #1,4:56.23; that the goods- 
 were not equal to the sample, and that this last defect diminished the value of 
 the goods in the sum of $517.18. The plaintiff had a verdict for the balance of 
 the price atwhich the goods were bargained for, deducting the sum of $517.18 — 
 thus rejecting the effect of the usage. On appeal, the judgment was affirmed, 
 the court holding that the deduction of $517.18 was properly allowed. "The 
 sale," said Chapman, J., " was by sample. On such a sale it is admitted that 
 the law implied a warranty that the bulk of the goods shall be equal in quality 
 to the sample. The jury have found that these goods were not equal to the 
 sample, and have assessed the damages at $517.18. This sum is, therefore, to- 
 be deducted from the agreed price." But the usage set up in the case was 
 adjudged invalid. After reviewing the cases in which usages in opposition to 
 rules of law had been rejected. Chapman, J., said : " There is no necessity for 
 such usages; because, if the parties agree that there shill be a warranty where 
 the law implies none, they can insert the warranty in the bill of sale, or if the 
 manufacturer seUs without wan-anty, he can so express it. But if such usages 
 were to prevail they would be productive of misunderstanding, litigation, and 
 frequent, injustice, and would be deeply injurious to the interests of trade an* 
 commerce. They would make it necessary to prove the law of the case by 
 witnesses on the stand, and it would be settled by the jury in each particular 
 case. Public policy, therefore, requires that where parties assume obligations, 
 which the law does not impose, or release obligations which it does impose. It. 
 should be done by express contract." In Whitmore v. South Boston Iron Com- 
 pany,'' a usage of founders not to warrant their castings against latent defects,, 
 or, in the case of patent defects, to be entitled to have the castings returned in 
 a reasonable time, and to have the option of replacing them with new ones, was 
 rejected. In Marhham v. Jaudon,^ the defendants, who were stock-brokers, 
 purchased certain stocks for plaintiff in their own names and with their own 
 ftmds, he depositing with them a " margin " of ten per cent, which he agreed to- 
 «<keep good." The plaintiff having failed to "keep the margin good," the 
 defendants sold out the stock without notice to him. It was held by the Court 
 of Appeals that the relation between the parties was that of pledgeor and 
 pledgee; that a sale under such circumstances without notice was a conversion; 
 and that, in an action by the plaintiff for such conversion, evidence of a usage 
 that stock held as in this case might be sold by the broker whenever, by the fall 
 .7AUen,29. « 2 Allen, 62. »41N.T.m 
 
484 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 The Contradictory Cases Examined. 
 
 of the stock in the market, the "margin" was exhausted and not renewed, was 
 inadmissible, because in direct variance with the rules of law applicable to the 
 relation of the parties. " This was an offer," said Hunt, C. J., referring to 
 the evidence rejected, " not to explain the meaning of particular terms, or to 
 prove attending circumstances, to enable the court to construe the agreement, 
 but to change the rights of the parties to a contract. By the law, as I have 
 interpreted it, the customer did not lose the title to his stock by any process 
 less than a sale upon reasonable notice, or by judicial proceedings. The broker 
 bad no right to sell without such a notice. A practice or custom to do otherwise 
 would have no more force than a custom to protest notes on the first d^ of 
 grace, or a custom of brokers not to purchase the shares at all, in a case like 
 the present, but to content themselves with a memorandum or entry in their 
 books of the contract made with their customer." This case was followed, 
 seven years later, in Baker v. Drake,^ decided in the same court in 1876. 
 
 § 247. Same — The above Cases examined. — Chapman, J., in Dickinson y, 
 ■Qay,'' attempted to reconcile the cases in which usages operating in contraven- 
 tion of law have been admitted with those in which similar usages have been 
 rejected. The former he described and classed as having reference to peculiar 
 habits, modes, or courses of business; the latter, as adopting a peculiar or local 
 rule of law contrary to a general rule of law applicable to the particular case. 
 But he was forced to admit that the distinction was rather fine, and would by 
 no means reconcile all the contrary cases. It is plain that the cases which we 
 have grouped in the preceding section are capable of no such classification, and 
 can be tested by no such principle as suggested in Dickinson v. Gay. They 
 exhibit, on the contrary, so serious a conflict with the principles upon wliich rest 
 those decisions In which evidence of usage has been admitted for the purpose 
 of carrying out the agreements of parties that any attempt to reconcile them 
 becomes impossible. Of the score or more of cases sot out in the previous sec- 
 tion, in which commercial customs were rejected by difEerent courts, not more 
 than three or four can, in the light of the law as exhibited in this treatise, be sus- 
 tained; and even in these cases their inadmissibility depended, not on their being 
 in conflict with a rule of law, but on their violating a rule of public policy. Thus, 
 the custom of bankers to mix all the funds received by them in a common mass ; ' 
 to distinguish between coin and paper in the paying of deposits; * to regard cer- 
 tain instruments as checks, and not entitled to days of grace ; * the custom of 
 insurers to receive notice of increased risks,^ or to limit the contract of reinsur- 
 ance ; ' the usage of brokers that a vendee might, at his option, reject the undis- 
 closed principal and look to the broker for the completion of the contract; * the 
 custom of merchants that on the sale of wool there is an implied warranty that 
 the wool is not falsely or deceitfully packed," that goods sold are of merchant- 
 able quality,'" that the seller should make good to the buyer damages arising 
 
 . ' 66 N. Y. 518. ' Hono «. Mutual, etc., Ins. Co., oraee, §24B. 
 
 - 7 Allen, 29. » Tnieman v. Loder, Magee v. Atkinson', 
 
 " Marine Bank v. Chandler, a. te, §246. ante, % 216. 
 
 < Thompson tJ.Riggs.onte, §246. ° Karnard «. Kellogg, ante, § 246. 
 
 5 Woodruff V. Merchants' Bank, Morrison '" Dodd v. Farlow, Thompson ». Ashton, 
 
 V. Bailey, ante, §240. on«e, §'il6. 
 
 » Stebbins v. Globe Ins. Co., ante, §246. 
 
USAGES IN CONFLICT WITH LEGAL RULES. 485 
 
 The True Principles Stated. 
 
 from hidden defects,' or that manuf3,cturers do not warrant against latent 
 defects,'' — all of which, in individual cases, have been rejected, — are different 
 in kind, but not in degree, from the multitude of similar usages and customs of 
 trade which, as already seen in the third chapter of this work, have been admit- 
 ted iij evidence. Other customs there are which differ essentially from these, 
 and which have been properly looked upon by the courts with disfavor. AntB 
 here we find at last the correct test by which to try the admissibility of a. 
 usage or custom. Thus, the custom of bankers to pay but one-half the amount 
 of a note when only half of it was presented by the holder, which was rejected 
 in Allen v. State Bank ; ^ the custom of brokers not to regard the fact that a. 
 bond presented to them for purchase was overdue, which was held invalid in 
 Vermilye v. Adams Express Company ; * the custom of banks not to rectify mis- 
 takes in the receipt or payment of money unless discovered before leaving the 
 oflBcej which was rejected in Gallatin v. Bradford ; " the custom of carriers that 
 freight-money received and not earned is nevertheless not returned, which was 
 declared void in Emery v. Dunbar^ and Frith v. Barker; ' the custom of captains 
 of vessels to retain profits of exchange on bills drawn on the owners, which was- 
 rejected in Diplock v. Blackburn ; " the usage of insurance agents to take all divi- 
 dends declared by mutual companies in lieu of other compensation for effecting 
 the insurance, which was held invalid in Minnesota Central Bailroad Compamj v. 
 Morgan;^ the usage of brokers to act for both parties to a. sale or exchange of 
 property, and to claim compensation from both, which was declared void in 
 Baisin v. Clark '» and Famsworth v. Hammer " — all these usages, and all such of 
 similar character and effect, are open to a more serious objection than that they 
 conflict with an " established rule of law." The first, as said in Allen v. State 
 Bank,''' " has a pernicious tendency to facilitate the receipt of money by the dis- 
 honest holders of half notes, and thereby creates or multiplies temptations to 
 dishonesty." The second would also place a premium upon dishonesty by abol- 
 ishing all the guards which the law has thrown around the title of a bona fide 
 holder of negotiable paper. The third and fourth are so unjust on their face 
 that they could hardly be defended on any ground, while the fifth, sixth, and 
 seventh violate the most necessary rules which the law has established for the 
 purpose of requiring good faith in the dealings of an agent with his principal. 
 All of them violate not only legal rules, but the principles of justice and fair 
 dealing. 
 
 § 248. The Meaning of the Rule that a Usage must not conflict with the 
 Law. — In the light of this principle, the meaning of the rule that a usage or 
 custom must not conflict with the law becomes clear, and the rule itself easy of 
 application. The language of the judges from whose opinions we have cited in 
 § 226 is incorrect, because it is unqualified. A usage or custom, as we have 
 already shown, is not invalid simply because it is different in its effect from the 
 
 > Diokinaon v. Gay, 7 Allen, 29. ' 2 Johns. 327. 
 
 2 Whitmore v. South Boston Iron Co., 2 8 3 Camp. 13. 
 
 Allen, 53. ' 82 Barb. 217. 
 
 ' 1 Dev. & B. Eq. 3. lo 41 Md. 168, ante, p. 431. 
 
 * 21 Wall. 189. " 1 Allen, 49i. 
 
 'lBihb,209. ^' Supra. 
 « 1 Daly, 403. 
 
486 WHEN IN CONFLICT WITH CONTRACTS, ETC. 
 
 The True Principles Stated. 
 
 general principles of law applicable to the particular circumstances in its 
 absence. But if it conflicts with an established rule of public policy which it is 
 not to the general interest to disturb ; if its effect is injurious to the parties 
 themselves in their relations to each other ; if, in short, it is an unjust, oppressive, 
 or impolitic usage, then it will not be recognized in courts of jastice, for it will 
 lack one of the requisites of a valid custom, viz., reasonableness,^ 
 
 > Ante, Ohap. I., SS 32, 46. 
 
INDEX. 
 
 [The references are to the pages.] 
 
 ACCOMMODATION USAGE, OE HABIT, 
 
 mere habit of accommodation or indulgence does not make a usage, 37. 
 creditor may indulge debtor in one case without binding himself as to other 
 
 dealings, 37. 
 illustrations of indulgences which do not amount to usages, 37, 38. 
 
 habit of merchants to pay debts by checks, 37. 
 
 to pay workmen in orders for goods, 38. 
 
 not to pay wages punctually, 38. 
 
 habit to call on workman to rectify careless job, 38. 
 
 habit to take currency in payment, 38. 
 
 favors by banks to depositors, 38. 
 
 practice of mills to give certificate of honorable discharge to operatives, 38. 
 
 owner allowing certain persons to cut timber on his land, 38. 
 
 act of railroad in paying for medical attendance of employee, 38. 
 but a practice of a business cannot be arbitrarily changed to the prejudice of 
 others, 38. 
 
 illustration of dealings between banker and customer, 39. 
 
 ACQUIESCENCE, 
 
 custom must be acquiesced in, 62, 63. 
 
 consent of all necessary to validity of custom, 62.- 
 illustrations of usages void because not assented to, 63 
 dictum in Alabama case criticised, 62, note. 
 
 ADULTERT, 
 
 in prosecution for, custom allowing great familiarity between the sexes rejected, 
 61. 
 but in proving adultery, by circumstantial evidence, social habiU of parties 
 relevant, 61. 
 
 AGENCY. (See Pkincipal akd Agent.) 
 
 AGENTS AND SERVANTS. (See Banks and Banking; Common Carriers; 
 Corporations ; Insukancb ; Master and Servant ; Principal and Agent.) 
 
 ANCIENT, 
 
 a common-law custom required to be, 26, 27. 
 
 void if its commencement could be shown, 26. 
 
 must have existed from time " whereof the memory of man runneth not to 
 the contrary," 26. 
 origin and history of this limitation, 26, 27. 
 
 (487) 
 
488 INDEX. 
 
 ANCIENT — Continued. 
 
 not applicable to the United States because of its newness, 27. 
 except, perhaps, in Virginia, 27. 
 a usage of trade, if established, need not be ancient, 2. 
 principle established by Lord Mansfield, 29. 
 what is meant by " established," 29, 30. 
 cases to be tested by circumstances, 29. 
 illustrations, 80. 
 
 ANTIQUITT. (See Ancient.) 
 
 AECHITECT, 
 
 usage that employment of, gives liim superintendence of building, 277. 
 
 the authorized ofScers of a municipality having decided to erect a public build- 
 ing, offered prizes for the best plans, with costs, etc. T., an architect» was 
 awarded one of the prizes, with notice that " the award should not be consid- 
 ered as indicating a preference for either of said plans, as to which should be 
 finally adopted, from which the said building should be erected," and the 
 amount of the prize ($1,000) was paid to him. Subsequently, by resolution, 
 the officers adopted T.'s plan, subject to conditions. Held, that this resolution 
 was a voluntary act of the officers, and did not amount to a contract between 
 them and T. Held, further, that in an action by T. against the officers, evi- 
 dence of a usage and custom among architects that in the absence of a special 
 contract the superintendence of the construction of a building belongs to the 
 architect whose plans are adopted, and that where prizes for plans are offered, 
 the plans of the successful competitors belong to them, and If subsequently 
 adopted as the plans to build bj-, they are always paid for in addition to the 
 prize itself, was properly excluded. TiUey v. City of Chicago, 358. 
 
 ATTORNEY, 
 
 custom of attorney in giving directions as to writs, 79. 
 
 habits of other attorneys in same place irrelevant, 80. 
 
 attorney may charge term-fee by usage, 303. 
 
 or retainers, 303. 
 
 or may be personally liable for sheriff's fees, 303. 
 usage to explain agreement between attorney and client, 386. 
 
 AUCTIONEERS, 
 
 usage of, as to fees for services, 45. 
 usages on sales by auction, 310, 311. 
 
 AUTHORS. (See Piiblishbbs and Authors.) 
 
 BAILMENTS. (See Common Carriers ; Innkeepers ; NEaLiosNCE.) 
 
 BANKS AND BANKING, 
 
 person must know usages of banks to be bound by them, when, 53. 
 long-established usages of banks binding on customers whether known or not, 63. 
 favors by bank to depositor do not make a usage. 38. 
 
 but cannot be arbitrarily changed to his prejudice, 39. 
 payment of loss by bank in an unusual case, 41. 
 particular instances of dealings in one or two banks, 41. 
 
 a particular banking-usage must apply to a place, not to a particular bank, 41. 
 cases which hold that in order to affect a person with the usage of a particular 
 , bank he must be shown to have known it, criticised, 53. 
 
INDEX. 48& 
 
 BANKS AND BANKING— Co»i«n«erf. 
 
 unreasonable usages of banks and bankers, 70. 
 
 to honor occasional overdrafts of customers in good standing, 70. 
 not to rectify mistakes discovered after person leaves bank, 70. 
 custom to require depositor to produce pass-book good, 70. 
 custom of banking-hours, 96. 
 other banking customs judicially noticed, 96. 
 particular customs of banks must be proved, 96. 
 
 usages of banks, and as affecting negotiable and assignable paper, 116, 204-214. 
 powers of bank officers as affected by usage, 205. 
 power to certify checks, 205. 
 proper officer to receive payments or deposits, 205. 
 transfer of shares to cashier vests legal title in bank, 206. 
 A custom on the part of all the banks in a particular place to demand pay- 
 ment and give notice to indoteers of negotiable paper on the fourth day 
 of grace is binding on an indorser if known to him. Renner v. Bank of 
 • Columbia, 116. 
 
 usages of banks as to demand and notice govern, 206, 207. 
 but some demand alwiiys necessary, 207. 
 discordant decisions, 208. 
 days of grace, how affected by usage, 208. 
 
 usage that paper In form of note is entitled to no grace, inadmis- 
 sible, 208. 
 duties of bank as collecting agent, 209. 
 
 may be delegated to notary by usage, 209. 
 
 conflicting decisions, 209. 
 may take check in payment by usage, 210. 
 payment by bank must be in good money, 210. 
 inconsistent usages invalid, 210. 
 payment of forged check by bank is at its peril, 211. 
 
 how far this rule affected by usage, 211, 212. 
 right of holders of one-half of bank-note, 212. 
 
 usage of bank not to pay any of its bills voluntarily cut in two invalid, 
 
 212. 
 so of custom to pay only half the amount on the presentation of each 
 half, 213. 
 bank bona fide holder of check by usage, 213. 
 purchaser of past-due negotiable paper takes it subject to equities, 214. 
 
 usage in opposition to this rule void, 214. 
 note may be negotiable by custom of a particular locality, 214. 
 
 \bank liable on certificate of deposit signed only by president, 245. 
 on contract for services, 245. 
 on bill of exchange indorsed by cashier, 245. 
 requisite notice of transfer of shares waived by usage, 246. 
 so of consent of directors to transfer, 246. 
 bankers and brokers ; bills and notes ; customs in contradiction to contract 
 
 inadmissible, 445, 446, 452. 
 statute allowing days of grace on note, 460. 
 
 contrary usage void, 460. 
 banks and banking — usages against legal rules admitted, 467. 
 usages against legal rules rejected, 467, 468. 
 
490 INDEX. 
 
 BILL OF LADING. (See Common Cakkibrs.) 
 
 BOOKS OF ACCOUNT, 
 
 party's practice may explain abbreviations and symbols in, 81. 
 entries made in usual course of business, 82-84. 
 evidence after party's death, 82. 
 
 if they are party's books of account kept in regular course. 83. 
 shingle containing minutes of lumber hewed admissible, 83. 
 also notched stick and wooden tallies, 88. 
 memoranda of sawyers on boards, 83. ^ 
 
 scraps of paper, 81. 
 tabular forms, 84. 
 single sale, though of more than one article, does not constitute a course of 
 business, 84. 
 
 BROKERS. {See Principal and Agent.) 
 
 BUNDLING, 
 
 custom of "bundling" described by Washington Irving, 59. 
 rejected in actions for seduction in Pennsylvania and New York, 9, 59. 
 
 BURDEN OP PROOF, 
 
 on party setting up usage, 97. 
 
 CERTAINTY, 
 
 common-law customs must be " certain," 30, 32. 
 principle explained by Mr. Browne, 31. 
 illustrations of uncertain and void customs, 81. 
 
 custom that land shall descend to the most worthy of the owner's blood 
 
 31. 
 custom for poor and indigent householders to cut and carry away 
 
 rotten boughs and branches in a chase, 31. 
 custom to pay sometimes two pence and sometimes three pence ia 
 lieu of tithes, 81. 
 But id certum est, quod eertum redi potest, 31. 
 custom for tenants of collieries to throw earth, stone, coals, etc., iMor 
 
 to certain coal-pits, 81. 
 custom to dig turf for making or repairing grass-plots as occasion re- 
 quires, 31. 
 custom for occupiers of brick-kilns to carry away as much clay as was at 
 any time required by tbem to make bricks, 32. 
 the usage of a particular trade must be certain and uniform to make it biudiog 
 on transactions in that trade. Wood v. Wood, 3. 
 illustrations of usages void for uncertainty, 33, 86. 
 
 usace in cloth trade that seller could demand goods back unless notified 
 
 by buyer within three days, a week, or a month, 33. 
 usage of veterinary surgeons to charge for attendance as well as medi- 
 cines when there is not much medicine required, 38. 
 usage of merchants to deliver goods sold for cash without demanding the 
 
 cash when seller considers the purchaser good, 38. 
 custom among wholesalq merchants to allow salesmen for time lost by 
 sickness, 83. 
 
 usage among brokers that margins put up to cover advance must be 
 " reasonable," 33. 
 
INDEX. 491 
 
 1 
 C^iRTAlSTY — Continued. • 
 
 custom among commission mercliantg, on sales for cash, to wait twoi 
 
 three, or four days for the money, 33. 
 custom among commission merchants in Indianapolis that flour of a 
 
 grade not suitable for sale there is forwarded to New York, 88. 
 custom of hotel-keepers as to deposit of money by guests in safe, 34. 
 custom of merchants as to what is meant by "borrowed money," 84. 
 custom of surveyors in making measurements, 85. 
 usage of captains of steamboats to give premium note for Insurance, 35. 
 usage which has no limit to its extent is bad, 35. 
 
 CHAEIVAEI, 
 
 custom of the, 61, 62. 
 
 cannot excuse murder or riot, 62. 
 
 CHECK. (See Bauks and Banking.) 
 
 CLASSIFICATION, 
 
 of the cases in this work, 368. 
 
 COMMON CAHRIERS, 
 
 usage of one railroad company, effect of, 41. 
 
 a few instances of transshipping goods or stopping at a particular port does not 
 
 establish a usage in the shipping trade, 42. 
 boat putting into port sometimes, but not usually, 42. 
 unreasonable usages of common carriers, 71-73. 
 
 for wharfingers to act as agents in accepting, on behalf of consignees, goods 
 arriving at wharves, 71. 
 
 for consignee of a vessel, also owner of cargo, to charge commission on 
 freight paid by himself to captain, 71. 
 
 that an intermediate carrier, who received property subject to charges, may 
 deduct from freight earned by prior carrier value of deficiency between 
 quantity delivered and that stated in bill of lading, and that prior carrier 
 shall not be allowed to show that error Occurred in stating amount in bill 
 of lading, 71. 
 
 that to constitute delivery of- goods by carrier by water, receipt must be 
 given to the carrier by consignee or agent, 71. 
 
 that freight paid in advance may not be recovered back, though not earned, 
 71. 
 
 that notice published in three newspapers in city, of time and place of land- 
 ing goods by steamboat, is such a notice as places them at risk of con- 
 signee, 71. 
 
 among owners of tow-boats that first coming alongside of a ship, on a signal 
 for steam, has absolute towing-contract, 71. 
 
 requiring those in legal use of watjrs as a highway to yield to others who 
 are using them for an unlawful purpose, 71. 
 
 that contract made to furnish and carry coal to a certain port for sale may be 
 thrown up by either party, at his convenience, no damage to be claimed 
 f^om either, 71. 
 
 of railroad company requiring claims for damages to be made when goods 
 are delivered, or soon after, 72. 
 
 that before consignee can obtain his wheat from company's bins he must 
 aign receipt for quantity, 72. 
 
492 iNDBX> 
 
 COMMON CARRIERS — Continued. 
 
 that railroad will not be responsible for contents of cars of which their ser- 
 vants have the keys, 72. 
 that passengers cannot take their baggage to state-rooms, 72. 
 to land goods on banks of river, 72. 
 to deliver cargo at a distance from consignee's wharf, 72. 
 lights and liabilities of, as affected by custom, 123, 214. 
 definition of common carrier qualified by usage, 214. 
 carrier liable as such for all property which by custom he undertakes to 
 
 carry, 215. 
 not liable till goods are "delivered " to him, 215. 
 
 what a good delivery determined by usage, 215-217. 
 usage to deliver to mate, 216. 
 to leave goods on wharf, 216. 
 to deliver to driver of coach, 216. 
 
 delivery of baggage at depot without notice to company good by 
 custom, 217. 
 usaje must be strictly followed, 217, 218. 
 complete delivery not affected by a contrary usage, 218-220. 
 
 actual delivery of goods to railroad not affected by usage to first 
 
 sign bills of lading, 218. 
 so of usage not to consider baggage as delivered until "checked," 
 220. 
 usage cannot prevail against express directions, 228, 229. 
 delivery not good on prohibited days, 229. 
 
 this rule, how affected by usage, 229, 230. 
 if by usage consignee provide appliances for delivery, carrier not liiible for 
 
 injuries received therein, 231. 
 usage may require a personal delivery, 231. 
 a complete delivery not affected by a different usage, 231. 
 express companies required by law to make personal delivery, 231. 
 usage not to make personal delivery rejected, 232. 
 but allowed in some cases, 233. 
 
 these latter cases criticised, 233-235. 
 expressman must notify consignor of consignee's refusal to accept goods, 285. 
 
 contrary usage allowed, 235. 
 liabilities of connecting carriers, 235, 236. 
 carrier's charges in absence of agreement fixed by usage, 236. 
 freight not earned may be recovered back, 237. 
 contrary usages void, 237, 238. 
 liability for property while in transit, 221. 
 
 custom that shipper may control property excuses carrier, 221. 
 conflicting decisions, 221. 
 carrier by water must store goods on deck, 221. 
 this rule altered by usage ; illustrations, 221. 
 
 usage as affecting liability of carrier for goods injured bv contact with 
 other goods, 222. 
 liability of carrier continues until he has made a delivery of the property, 
 
 the limits of this rule obtained by evidence of usage, 222-224. 
 formerly personal delivery was required of carrier, 224. ■ 
 
 but usages of trade have modified this, 225. 
 
INDEX. 493 
 
 COMMON GAUniERS— Continued. 
 
 carrier required by law to give notice of arrival of goods, 225, 226. 
 this rule altered by usage, 226. 
 
 where the defendants, who were common carriers on Lake Cham- 
 plain, were intrusted with a package of bank-bills to carry from 
 B. to P., directed to the cashier of the bank at P., and they deliv- 
 ered them to the wharfinger of the wharf at P., at which place 
 their boat touched, from whom the package was stolen, in an 
 action by the consignors for the loss : held, on the first appeal, 
 that it was competent for the defendants to prove that it was their 
 uniform usage, well known to the plaintiffs, to deliver such pack- 
 ages of money, when intrusted to them, to the wharfinger having 
 charge of the wharf where the boat landed, without giving any 
 notice to the consignee. Held, further, on a second appeal, that 
 it was not essential to show that the plaintiffs had actual knowl- 
 edge of this usage. Farmers\ etc.. Bank v. Champlain Transp. 
 Co. 133. 
 other illustrations, 227. 
 
 cases where similar usage as to delivery did not prevail, 227, 228. 
 carrier has no power to sell goods in his charge, except in emergency, 238. 
 
 contrary rule recognized, 238. 
 carrier has only a particular lien on goods for his unpaid charges, 288. 
 
 but general lien may be given him -by custom, 238-240. 
 carrier giving credit for charges loses his lien, 241. 
 
 but usage may allow this, 242. 
 bills of lading construed by usage, 242. 
 usage must be uniform, 242. 
 
 carriers' liability cannot be restricted by usage, 242. 
 statutory exemptions to carriers' liability cannot be waived by usage, 243. 
 usage admissible to explain terms in bills of lading and other maritime con- 
 tracts, 408-411. 
 custom which precludes carrier from denying receipt of amount stated 
 
 in bill of lading bad, 408. 
 words and phrases explained by usage, 408-411. 
 {See also Words and Phkasbs.) 
 contracts between carrier and customer cannot be contradicted by usage, 
 
 435-438. 
 statute prohibiting carrier from limiting common-law liability cannot be 
 
 altered by usage, 459. 
 common carriers — usages against legal rules admitted, 468. 
 usages against legal rules rejected, 469. 
 
 COMMON-LAW CUSTOMS. {See Custom aot) Usaqb; Gbmuial (Justoms; 
 Pakticttlar Customs.) 
 
 COMPULSOEY, 
 
 customs must be, 36. 
 
 explanation of this rule, 36. 
 
 custom to contribute at one's pleasure, void, 86. 
 
 CONFLICT OP LAWS, 
 
 usages of place where contract Is drawn govern in its construction, 110. 
 where one party a foreigner. 111. 
 
494 INDEX. 
 
 CONFLICT OF Jj A'WS — CmHnued. 
 
 when contract by correspondence, 111. 
 
 other cases, 111. 
 
 contract niiide in B. with manufacturers in P., usages of market in P. govenv 
 
 111, 112. 
 customary covenants in deed governed by lex rei sites, 112. 
 
 CONSISTENT, 
 
 customs must he, 36. 
 
 explanation of the rule, 36. 
 
 CONSTRUCTION OF CUSTOMS AND USAGES, {See also Wobds and- 
 Phrases.) 
 
 construction of common-law customs, 107-110. 
 customs construed strictly, 107, 108. 
 
 illustrations of this rule, 108. 
 usages of trade construed strictly, 108. 
 
 usage to deliver goods to mate will not excuse delivery to deck-hand, 
 
 108. 
 usage of passenger confined strictly to passengers, 108. 
 of carrier to notify consignee at store, 108. 
 of blink teller to issue certificates of deposit does not include certifying^ 
 
 checks, 108. 
 other instances, 108, 109. 
 usagu of railroad to allow employees to ride free on its trains not ox. 
 
 tended to paying their passage on other roads, 109. 
 usages of railroads strictly construed, 109. 
 usages cannot act retrospectively, 109. 
 usages disregarded in courts of law not regarded in chancery, 109. 
 
 CONTINUED, 
 
 customs must be, 36. 
 
 interruption of custom avoids it, 87. 
 
 if interruption of usage, and not of right, 87. 
 usage proved Ui Bxi.-st at a period long before the transaction to be affected, and 
 
 not since, inadmissible, 37. 
 custom of charging interest, different with different city officers, invalid, 37. 
 witness's knowledge being not later than a year before his introduction, usagfr 
 
 inadmissible, 37. 
 mere habit of accommodation or indulgence does not make a usage, 87. 
 creditor may indulge debtor in one case without binding himself as to other 
 
 dealings, 37. 
 illustration of indulgences which do not amount to usages, 87, 88. 
 habit of merchants to pay debts by checks, 87. 
 to pay workmen in orders for goods, 38. 
 not to pay wages punctually, 88. 
 habit to call on workman to rectify careless job, 88. 
 habit to take currency in payment, 38. 
 favors by banks to depositors, 38. 
 
 praolii e of mills to give certificate of honorable discharge to operatives, 88. 
 owner allowing certain persons to cut timber on his land, 38. 
 act of railroad in paying for medical attendance of employee, 88. 
 
INDEX. 495 
 
 OOniHSVED— Continued. 
 
 but a practice of a business cannot be arbitrarily changed to the piejudice of 
 others, 88. 
 illustration of dealings between banker and customer, 39. 
 
 CONTRACT, {See also Common Carriers; Insurance Law; Master and 
 Bkbvant ; Mechanics and Workmen ; Principal and Aoent.) 
 custom does not obligate mode of executing contract, 82. 
 
 oral insurance contract good, though usually in writing, 82. 
 parol evidence inadmissible to vary a written contract, 364. 
 but it may explain an ambiguity, 364. 
 or show a collateral agreement, 364. 
 or show forgery, or fraud, or duress, 365. 
 other exceptions, 365. 
 admissibility of usage to aftiect written contracts, 365. 
 views of the text-writers and judges, 366. 
 usage may explain technical or unintelligible terms, 867. 
 may explain even unambiguous words if used in a peculiar mode, 367. 
 in a lease of a rabbit-warren, the lessee covenated that at the expiration of 
 the term he would leave on the warren ten thousand rabbits, the lessor 
 paying for them £G0 per thousand. In an action by the lessee against the 
 lessor for refusing to pay for the rabbits left at the end of the term : held, 
 that parol evidence was admissible to show that by the custom of the 
 country where the lease was made, the word "thousand," as applied to 
 rabbits, denoted twelve hundred. Smith v. Wilson, 335. 
 classification of the eases, 368. 
 
 usage admissible to add unexpressed terms to written contracts, 869. 
 incidents annexed to contracts generally, 369. 
 
 illustrations, 370. 
 incidents added by usage cannot establish a contract, 370. 
 
 in the absence of a contract, evidence of usage and custom is irrelevant. 
 The authorized ofiicers of a municipality having decided to erect a 
 public building, offered prizes for the best plans, with costs, etc. T., 
 an architect, was awarded one of the prizes, with notice that "the 
 award should not be considered as indicating a preference for either of 
 said plans, as to which should be finally adopted, from which the said 
 building should be erected," and the amount of the prize ($1,000) was 
 paid to him. Subsequently, by resolution, the officers adopted T.'s 
 plan, subject to conditions. Seld "^hat this resolution was a voluntary 
 act of the officers, and did not aiii>,..iit to a contract between them and 
 T. Held, further, that in an action by T. against the officers, evidence 
 of a usage and custom among architects that in the absence of a spe- 
 cial contract the superintendence of the construction of a building 
 belongs to the architect whose plans are adopted, and that where prizes 
 for plans are offered t' i plans of the successful competitors belong 
 to them, and if subsequently adopted as the plans to build by, they 
 are always paid for in addition to the prize itself, was properly ex- 
 cluded. Tilley v. (Mty of Chicago, 358. 
 parties differing as to usage, does not destroy contract, 371. 
 usage not admissible to supply disputed terms, 371. 
 usage inadmissible when repugnant to express contract, 434. 
 contradictory expressions by the courts, 434, 435. 
 
49 (j INDEX. 
 
 CONTKACTS — Continued. 
 
 the true rule stated, 436. 
 
 contracts between carrier and customer, 435. 
 
 cannot be contradicted by evidence of usage, 435-438. 
 contracts of insurance, 438-441. 
 
 cannot be contradicted by usage, 438-441. 
 
 in an action on a policy of insurance on a ship, her tackle, apparel, hoat, 
 and other furniture, evidence of a usage that boats slung on the out- 
 side of the ship, on the quarter, are not protected, is inadmissible, as 
 contradicting the express terms of the contract. Blackett v. Royal 
 Exchange Aasur. Co. 413. 
 agreements between landlord and tenant, 441. 
 
 contract for time certain cannot be evaded by custom, 441.' 
 
 tenant agreeing to give landlord waygoing crop cannot claim it by ous 
 
 tom, 441. 
 other instances, 441. 
 contracts of hiring, 441. 
 
 if express, cannot be altered by contradictory customs, 441. 
 contracts for work and labor, 441-443, 452. 
 
 A. agreed to make B. a " satisfactory " suit of clothes. A. afterwards de- 
 livered the clothes to B., but B. returned them to A. with a notice that 
 they did not fit, and were unsatisfactory. In a suit by A. against B. 
 for the price : held, that evidence that a custom existed among tailors 
 of having garments tried on after they were finished, and then making 
 any alterations that might be necessary to make them fit, was inadmis- 
 sible, because it contradicted the terms of an express contract. Brown 
 V. Foster, 417. 
 other cases, 441-443. 
 principal and agent, 444, 445. 
 
 express contracts between, cannot be contradicted by usage, 444, 445. 
 bankers and brokers; bills and notes, 445. 
 
 customs in contradiction to contract inadmissible, 445, 446, 452. 
 contracts of sale, 447. 
 
 if not ambiguous, cannot be altered by usage, 448, 452. 
 criticism of some cases, 448. 
 express agreement between innkeeper and guest cannot be altered by customi 
 453. 
 
 CONTKACTS OP SALE. {See Vbndoe and Purchaser.) 
 
 CONTRACTS OF SERVICE. {See Master and Servant.) 
 
 CONTRACTS FOR LABOR AND MATERIALS. {See Mkchanics and Wokk- 
 
 MEN.) 
 
 CONTRIBUTORY NEGLIGENCE. (Sec Negligence.) 
 
 CORPORATIONS, (See also Banks and Banking ; Common Carriers.) 
 customs of servants of corporations, 50-52. 
 
 usage of servants of corporation not known to officers not binding on it, 50. 
 but their knowledge may be implied from the notoriety of the usage, 50. 
 
 custom of conductors on railroads to pay out small bank-notes, in viola, 
 tion of statute, 51. 
 corporations, their powers and liabilities as aflfected by usage, 145, 243-248. 
 
INDEX. 497 
 
 OOEPOEATIONS — Continued. 
 
 requisite of corporate seal altered by usage, 243. 
 powers of officers of corporations affected by usage, 244, 245. 
 a corporation may by usage and practice render itself liable on contracts 
 executed in a different mode from that authorized in its charter. Burkley 
 V. Derby Fishing Co. 145. 
 insurance company liable on policy executed in mode different from 
 
 that prescribed by charter, 245. 
 on agreement signed by agent, 245, 246. 
 on parol contract, 245. 
 and on bill of exchange, 245. 
 
 bank, on certificate of deposit signed only by president, 245.- 
 on contract for services, 245. 
 a bill of exchange indorsed by cashier, 245. 
 requisite notice of transfer of shares waivsd by usage, 246. 
 so of consent of directors to transfer, 246. 
 corporation has no lien on shares of stockholder for indebtedness to it, 246. 
 
 but may by usage, 247. x 
 
 transfer of certificates by usage, 248. 
 
 notice to stockholders published in newspaper valid by custom, 248. 
 corporations — usages against legal rules admitted, 469. 
 
 COtTRSE OF BUSINESS. (See Habit.) 
 
 CRIMES, 
 
 custom cannot excuse, 62. 
 
 evidence of usage on prosecution for disturbing worship, 333. 
 
 for carrying concealed weapons, 333. 
 statute declaring violent and tumultuous acts riot, 460. 
 
 custom of the country void, 460. 
 statute prohibiting work on Sunday, 460. 
 
 custom of barbers to work on that day void. 460. 
 
 CUSTOM AND USAGE, 
 
 definition of custom, 15. 
 
 different kinds of common-law customs, 15. 
 
 general customs defined, 15. 
 
 are the common law, 16. 
 
 founded on act of Parliament, 16. 
 
 particular customs defined, 15, 16. 
 
 confirmed to particular districts by statute, 16 
 
 instances of particular customs, 17. 
 
 gavelkind in Kent, 17. 
 
 borough-English, 17. 
 
 customs of manors, 17. 
 
 customs of London, 17. 
 
 law of the river, 17. 
 
 law of the road, 17. 
 
 analogy between customs and language, 17. 
 
 views of Mr. Bbownb, 17-19. 
 
 Mr. Disraeli on the propriety of legalizing cuBtoms, 18. 
 
 landlord and tenant customs in Ireland, 18. 
 
 customs of merchants defined, 18. 
 
 3? 
 
498 INDEX. 
 
 CUSTOM AND USAGE— Continued. 
 
 adopted by the law-merchant, they become a part of tbe common law, 20. 
 practice of the old judges, in their establishment, to confer with mer- 
 chants as to their existence and effect, 20. 
 general custom of merchants judicially recognized by the courts, 20. 
 local customs of trade defined, 20. 
 dislike of the judges to extend the office of a usage, 20-24. 
 
 Lord Eldon's opinion that they had been extended far enough, 21. 
 Similar views in Sution v. Warren, in the case of instruments under seal, 21. 
 Lord Dekman's expression on the subject in Freeman v. Loder, 21. 
 similar views expressed in America by Mr. Justice Stoby, in The Reeside, 21. 
 and in a subsequent case by the same judge, 21. 
 
 Chief Justice Tilohman's lament over their introduction into the law, 22. 
 Chief Justice Gibson's dislike to their admission, 22. 
 similar opinion of Pekkins, J.; in Cox v. 'Riley, 22. 
 of Stuabt, J., in another Indiana case, 22. 
 of CoOLEY, C. J., in Strong v. Grand Trunk R. Co., 22. 
 of Senator Weight, in Dykera v. Allen, 22. 
 of Mr. Justice Hilleb, in Partridge v. Insurance Co., 23. 
 of Stone, J., in Barlow v. Lambert, 23. 
 different views entertained by other judges, 23-25. 
 
 the opinion of the Supreme Court of Vermont: "Usage and custom will 
 accomplish everything except impossibilities," 23. 
 ■ their introduction favored by Hubbaed, J., of the Supreme Judicial Court 
 
 of Massachusetts, 23. 
 views of Ranney, J., on the evils which would result from their rejection, 23. 
 the difficulty of the subject pointed o\it by Dewey, J., in Clark v. Baker, 24. 
 the universality of their influence shown by Baldwin, J., in Wilcocka v. 
 , Phillips, 24. 
 
 Thompson, C. J., of Pennsylvania, favors their admission into the law, 24. 
 Lord Campbell's views in Humfrey v. Dale, 25. 
 liberality shown in England of late years in admitting them, 25. 
 the American cases still contradictory and confusing, 25. 
 the different kinds of usages and customs considered in this work, 26. 
 particular customs defined, 26. 
 usages of trade defined, 26. 
 the custom of a particular person, 26. 
 a common-law custom must be ancient, 2S, 27. 
 
 if its commencement could be shown, it was void, 26. 
 
 to be " ancient," it must have existed from a time " whereof the memory of 
 man runneth not to the contrary," 26. 
 origin and history of this limitation, 26, 27. 
 not applicable in the United States on account of the newness of the 
 
 country, 27. 
 except, perhaps, in Virginia, 27. 
 a usage applicable to a particular trade or profession, if established, need not be 
 ancient, Sewall v. Carp, 2. 
 this principle established in an early English c*se by Lord Mansfield, 29. 
 what is meant by "established," 29, 30. 
 
 cases to be tested by their circumstances, 29. ■ 
 illustrations, SO. 
 a common-law custom must be certain, 30, 82. 
 
INDEX. 499' 
 
 CUSTOM AND XJSAG^ — Continued. 
 
 principle explained by Mr. Browne, 31. 
 illustrations of uncertain and void customs, 31. 
 
 custom that land shall descend to the most worthy of the owner's blood, 31. 
 custom for poor and indigent householders to cut and carry away rotten 
 
 boughs and branches in a chase, 81. 
 custom to pay sometimes two pence and sometimes three pence in lieu 
 of tithes, 81. 
 
 but id cerium est, quod certum redi potest, 81. 
 stom for tenants of collieries to throw earth, stone, coals, etc., near to 
 certain coal-pits, 31. 
 custom to dig turf for making or repairing grass-plots as occasion requires, 
 
 81. 
 custom for occupiers of brick-kilns to carry away as much clay as Wiis 
 at any time required by them to make bricks, 82. 
 the usage of a particular trade must be certain and uniform to make it binding on 
 transactions in that trade. Wood v. Wood, 8. 
 illustrations of usages void for uncertainty, 33, 36. 
 
 usage in cloth trade that seller could .demand goods back unless notified 
 
 by buyer within three days, a week, or a month, 33. 
 usage of veterinary surgeons to charge for attendance as well as medi- 
 cines when there is not much medicine required, 33. 
 usage of merchants to deliver goods sold for cash without demanding the 
 
 cash when seller considers the purchaser good, 33. 
 custom among wholesale merchants to allow salesman for time lost by 
 
 sickness, 33. 
 usage among brokers that margins put up to cover advance must be 
 
 "reasonable," 38. 
 custom among commission merchants, on sales for cash, to wait two, 
 
 three, or four days for the money, 83. 
 custom among commission merchants in Indianapolis that flour of a grad& 
 
 not suitable for sale there is forwarded to New York, 33. 
 custom of hotel-keepers as to deposit of money by guests in safe, 34. 
 custom of merchants as to what is meant by " borrowed money," 34. 
 custom of surveyors in making measurements, 35. 
 
 usage of captains of steamboats to give premium-note for insurance, 35. 
 usage of trade which has no limit in extent is bad, 35. 
 customs must be compulsory, 36. 
 explanation of this rule, 86. 
 
 custom to contribute at one's own pleasure, void, C8. 
 customs must be consistent, 36. 
 explanation of this rule, 36. 
 customs must be continued, 36. 
 
 interruption of custom avoids it, 37. 
 
 but to have this force it must be an interruption of the usage, not of the' 
 right, 87. 
 usage proved to exist at a period long before the trr.nsaction to be affected,. 
 
 and not since, inadmissible, 37. 
 custom of charging interest, different with different city oflScers, invalid, 37. 
 witness's knowledge being not later than a year before his introduction, usag& 
 
 inadmissible, 87. 
 mere habit of accommodation or indulgence does not make a usage, 87. 
 
500 INDEX. 
 
 CUSTOM AND VSAQ'E — Continued. 
 
 creditor may indulge debtor in one case without binding himself as to other 
 
 dealings, 87. 
 illustration of indulgences which do not amount to usages, 37, 88. 
 habit of merchants to pay debts by checks, 37. 
 to pay workmen in orders for goods, 38. 
 not to pay wages punctually, 38. 
 habit to call on workman to rectify careless job, 38. 
 habit to take currency in payment, 38. 
 favors by banks to depositors, 38. 
 
 practice of mills to give certificate of honorable discharge to opera- 
 tives, 88. 
 owner allowing certain persons to cut timber on his land, 38. 
 act of railroad in paying for medical attendance of employee, 38. 
 but a practice of a business cannot be arbitrarily changed to the prejudice 
 of others, 38. 
 illustration of dealings between banker and customer, 39. 
 a common-law custom must be general, 39. 
 
 illustrations, 40. 
 the rule of law as to importing into the terms of a tenancy the custom of the 
 country does not admit of evidence of the usage of a particular estate on the 
 property of a particular individual, however extensive it may be. Womersley 
 v. Dally, 5. 
 how far generality required of a particular custom, 40. 
 
 contradiction to say that a particular custom must be general, 40. 
 generality only material as affecting the question of knowledge of the cus- 
 tom, 40. 
 usage may be "general" though confined to a particular city, town, or vil- 
 lage, 41. 
 instances of inadmissible usages under this head, 41, 
 usage of a single house, 41. 
 of a single mill, 41. 
 of only one person, 41. 
 of one railroad company, 41. 
 custom in New Orleans, Cincinnati, and Louisville 4oeB not prove a 
 
 general custom on the Mississippi River and its tributaries, 41. 
 practice, to amount to a usage, must be the mode, 41. 
 payment of loss by bank in an unusual case, 41. 
 particular instances of dealings in one or two banks, 41. 
 a particular banking-usage must apply to a place, not to a particular 
 
 bank, 41. 
 usage of municipal corporations must be general among like towns and 
 
 cities, and not local in one place, 41. 
 a few instances of transshipping goods or stopping at a particular port 
 
 does not establish a usage in the shipping trade, 42. 
 boat putting into port sometimes, but not usually, 42. 
 usage of coal-miners not suflSciently proved by a miner who only worked 
 
 in one shaft, 43. 
 proof that a practice is " very common " in a trade does not establish a 
 
 usage, 43. 
 that it was " very unusual " to do a thing does not show a usage not to 
 do so, 43. 
 
INDEX. 501 
 
 CUSTOM AND VS AGE— Continued. 
 
 instances of usages sustained as sufficiently general, 44. 
 custom prevailing in three different establishments, 44. 
 custom of river as to booming logs, 44. 
 custom as to negotiable paper in Iowa, 44. 
 custom of ship-broker, 44. 
 a person entering into a contract is not bound by the usage of a particular busi- 
 ness unless it is so general as to furnish a presumption of knowledge, or it is 
 proved that he was acquainted with it. It was a rule in a cotton-factory in A., 
 and some neighboring factories, that no person employed should leave their ser- 
 vice without giving a fortnight's notice of his intention to quit. A weaver who 
 did not know of this rule worked in the factory without any agreement as 
 to the terms of service, but was paid by the yard for the work which he 
 turned out. He left the factory without giving any previous notice. Seld, 
 that the rule was not binding on him, and that he, therefore, was not liable to an 
 action for damages by the owner of the factory for thus leaving. Stevens v. 
 Reeves, 6. 
 general commercial usage presumed to be known to all, 45. 
 but not so as to particular usages, 45. 
 knowledge of particular usages must be shown by express proof, or by evidence 
 
 of their generality and notoriety, 45. 
 custom prevalent between owners and tenants of particular estate not presumed 
 
 to be known to tenant, 45. 
 particular usages of Insurance trade not presumed to be known to dealers, 45. 
 so also of the usages of carriers, 45. 
 
 usages not known to parties not binding — other instances, 45. 
 usage of auctioneers as to fees for services, 45. 
 of factors as to disposition of funds of principals, 45. 
 of merchanla as to commissions allowed to agents, 46. 
 of cabinet-makers as to employment of workmen, 46. 
 of brokers as to indorsement of checks, 46. 
 of lessor of mine, 46. 
 
 of livery-stable keepers to have a lien on horses boarded, 46. 
 of publishers as to authors' copyright, 46. 
 of printing establishments as to sale of good-will, 46. 
 of hotel-keepers as to deposit of money of guests, 46. 
 usages of the Stock Exchange, 47-50. 
 
 person dealing in, or employing broker to deal in. Stock Exchange presumed 
 to agree to its usages, 47. 
 illustrations in the English decisions, 47-49. 
 persons having only occasional dealings with brokers not presumed to know 
 their usages, 49. 
 usage of brokers as to " straddle " contracts, 49, 50. 
 usage as to charges for telegrams, 50. 
 customs of servants of corporations, 50-52. 
 
 usage of servants of corporation not known to officers not binding on it, 50. 
 but their knowledge may be implied from the notoriety of the usage, 50. 
 custom of conductors on railroads to pay out small bank-notes, in viola- 
 tion of statute, 51. 
 custom of merchants to charge interest, 52. . 
 must be known to customer, to bind him, 52. 
 but knowledge may be implied from previous dealings, 52. 
 
502 INDEX. 
 
 CUSTOM ANQ VHAG^K — Continued. 
 customs of banks, 53. 
 
 cases which hold that in order to affect a person with the usage of a particu- 
 lar bank he must be shown to have known it, criticised, 53. 
 long-established usages of banks binding on customers, whether known to 
 them or not, 53. 
 customs ot particular trades or professions, 63. 
 
 all trades have their usages, which are presumably part of every contract 
 
 made with reference thereto, 53. 
 not material that party had express notice of them in following cases, 53. 
 custom of veterinary surgeons to charge for attendance as well as medi- 
 cines, 53. 
 custom among dry-goods jobbers not to dismiss clerk until end of 
 
 season, 54. 
 custom of glass-ware manufacturers to allow agents commission on goods 
 
 ordered directly through manufacturer, 54. 
 custom of employers requiring of servants notice of intention to leave, 
 
 must be known to latter, 54. 
 not sufficient that printed notice was placed in employee's hands, unless 
 
 he could read, 54. 
 If servant has no notice at time he commences work, subsequent notice 
 does not affect him, 54. 
 distinction should be miide between local and general customs of this char- 
 acter, 54. 
 latter may be presumed to be known to servant or employer, 54. 
 customs in insurance, law, 55, 56. 
 
 particular customs not known to insured, inadmissible, 55. 
 
 custom to charge extra premiums on unoccupied dwelling-houses, 55. 
 usage to require, as proof of death, certificate from attending physician 
 
 of deceased, 55. 
 usage for insurer to receive notice of increase of risk, and to have option 
 
 of continuing or annulling policy, 55. 
 custom that term "carpenters," in policy, referred to the employment 
 
 of carpenters in adding to buildings insured, 55. 
 custom to reject applications on buildings previously fired by an in- 
 cendiary, 55. 
 custom to require notice of additional insurance to be given, 55. 
 
 this case open to criticism on other grounds, 55, note, 
 custom not to deliver policies to agents unless insured was at the time in 
 
 good health, 55. 
 custom to require applications for additional insurance to be in writing, 
 
 55. 
 usage to construe "standing detached" as meaning that subject shall 
 
 be at least twenty-five feet from external exposure, 55. 
 usage to require preliminary survey of goods damaged by port-wardens, 
 
 55. 
 usage as to mode of adjusting losses, 56. 
 partiouhir customs not known to insurer also inadmissible, 56. 
 cust im for watchman at factory to leave on Snndays, 56. 
 custom not to regard the Straits of Northamborhi id as within the O-ulf 
 of St. Lawrence, 56. 
 knowledge of custom, when not presumed, 56. 
 
INDEX. 5 J3 
 
 CUSTOM AND VS AGE — Continued. 
 
 custom cannot affect those between wliom there ia no privity of contract, 56. 
 custom between brewers and tavern-keepers cannot affect distillers, 56. 
 custom cannot affect those ignorant of it, 57, 58. 
 
 custom of bank cannot bind party who does not intend to be brought within 
 its operation, 57. 
 custom of bank does not affect note not payable there, 58. 
 one instance of a practice will not show a usage, 58. 
 but miy show knowledge, 58. 
 a custom mu=t be moral, 58. 
 
 custom giving to lord of manor rights of concubinage with tenant's wives 
 on their wedding-nights, immoral, 58. 
 such custom denied in England, 58. 
 in an action by one for the seduction of his daughter, a custom of "bund- 
 ling" — i.e., for persons courting to sleep together — cannot be set up by 
 him to excuse his connivance at the intercourse. Seagar v. Sligerland, 9. 
 custom of " bundling " described by Washington Irving, 59. 
 custom of "bundling" rejected in action for seduction In Pennsylvania iu 
 
 1845, 59. 
 custom of promiscuous cohabitation among free and slave blacks, 60. 
 immnnil customs in Engliii 1, 61, note. 
 
 in prosecution for adultery, customs allowing great familiarity between 
 men and women rejected, 61. 
 but in proving adultery by circumstantial evidence, social habits of the 
 parties relevant, CI. 
 custom of the charivari, 61, 62. 
 cannot excuse murder, 62. 
 or riot, 62. 
 a custom must be peaceable and acquiesced in, 62, 63, 
 consent of all necessary to validity of customs, 62. 
 illustrations of usages void because not assented to by the public, 63. 
 dictum in Alabama case criticised, 62, note, 
 a custom or usage of trade must be reasonable, and it is not so if it is such as 
 honest and right-minded men would deem unfair and unrighteous. So held of 
 a usage of undertakei-s to charge the original cost of articles used at any funeral, 
 although they might be used at other funerals. Paxton v. Gourtnay, 11. 
 usage in strawberry business to put all big strawberries at top of box un- 
 reasonable, 11. 
 a custom of a particular port that seamen's advance wages due under the shipping- 
 articles shall be paid to the shipping-agent, to be paid by him to the boarding- 
 house keeper bringing the seamen, for their benefit, is unreasonable, and does 
 not bind the seamen, although known to them at the time of signing the ar- 
 ticles. Metcalf V. Weld, 12. 
 what is meant by " unreasonable," 63. 
 •custom good if reason cannot be given against it, 64. 
 customs against rules or maxims of common law not bad, 64. 
 
 as gavelkind and borough-English, which are contrary to the law of descent, 
 
 64. 
 or custom of Kent, which is contrary to the law of escheats, 64. 
 
 but customs contrary to legal rules or public policy are bad, 64. 
 customs beneficial to the public good, though injurious to some, 64, 65. 
 as custom to pull down houses to prevent spread of fire, 64. 
 
504 INDEX. 
 
 CUSTOM AND VSAGB — Continued. 
 
 to turn plough on another's headland, 04. 
 
 to destroy corrupt victuals exposed tor sale, 64. 
 
 to oblige person to take office under penalty, 64. 
 
 to exempt factors from paying duty on corn, 64. 
 
 to dig gravel on adjacent land to repair way, 64. 
 
 to have a watering-place in adjacent land, 64, 
 
 to dig for ballast, 64. 
 
 to dry nets on another's land, 64. 
 
 to cut rushes on lord's land, 64. 
 
 to distrain goods of ship for port dues, 65. 
 
 for lord of manor to have toll on all goods landed on wharf which he kept in 
 repair, 65. 
 
 to take part of barley exported, 65. 
 
 to enter on close for horse-racing, C5. 
 
 to dig for clay to make bricks on lord's land, 65. 
 customs not unreasonable if simply inconvenient, 65-67. 
 
 custom for all inhabitants to play at games in a particular close, 65. 
 
 to dry nets on land adjacent to the sea, 66. 
 
 to grind wheat at mill of lord of manor, 66. 
 
 to grind corn in their own houses and pay toll, 66. ''' 
 
 to receive toll on all corn, 66. 
 
 for victuallers to erect booths on common, 66. 
 customs injurious to public bad, though beneficial to some, 67. 
 
 custom that commoner cannot turn in his cattle till after lord, 67. 
 
 that lord shall have a fine for every pound breach, 67. 
 
 customs in restraint of trade, 67. 
 
 to go through a particular housi', 67. 
 
 to train horses beyond limits of parish, liT. 
 existence of unreasonable modern usages doubted, 67, 68. 
 
 by Thompson, C. J., in MeMasters v. Pennsylvania R. Co., 67. 
 
 by Chbves,^., in South Carolina, 67. 
 usages prima facie are reasonable, 68. 
 the test of their reasonableness, 68. 
 courts will reject unreasonable usages, 68. 
 
 unless parties have actually incorporated them in their contracts, 68, 69. 
 unreasonable usages between vendor and purchaser, 69, 70. 
 
 custom authorizing, on contract for goods of specified character, delivery of 
 diiferent goods, 69. 
 
 on sale of goods of one mill, delivery of goods of another mill, 69. 
 
 that sales of particular class of goods are subject to approval of public in- 
 spector, but if there is no such inspector, buyer may rescind purchase at 
 pleasure, 69. 
 
 that no title passes, upon ordinary sale and delivery, without actual payment 
 of consideration within certain number of days, 69. 
 
 that if note is given for gold-mine, and it proves unproductive, it is given 
 up, 69. 
 
 for merchants to sign receipts presented by cartmen with goods, without 
 inquiry on part of receiving-clerk as to their ownership, or place from which 
 they wore reci ived, 60. 
 
 of board of trade, on cash sales of produce or provisions, giving buyer privi- 
 lege of having them inspected at his own expeuse, 69. 
 
INDEX. 505 
 
 CUSTOM AND VSAQ^E — Continued. 
 
 among dealers in cotton as to warehouse-receipts, 69. 
 
 that where the vendor of goods receives note of the consignee, without 
 indorsement of purchaser, latter is discharged, and maker alone remains 
 liable, 69. 
 
 among merchants to have their goods sent to their stores by long and circuit- 
 ous routes, 69. 
 
 to balance books annually and charge interest on running account, 69. 
 unreasonable usages of banks and bankers, 70. 
 
 to honor occasional overdrafts of customers in good standing, 70. 
 
 not to rectify mistakes discovered after person leaves bank, 70. 
 custom to require depositor to produce pass-book good, 70. 
 unreasonable usages of common carriers, 71-73. 
 
 for wharfingers to act as agents in accepting, on behalf of consignees, goods 
 arriving at wharves, 71. 
 
 for consignee of a vessel, also owner of cargo, to charge commission on freight 
 paid by himself to captain, 71. 
 
 that an intermediate carrier, who received property subject to charges, may 
 deduct from freight earned by prior carrier value of deficiency between 
 quantity delivered and that stilted in bill of lading, and that prior carrier 
 shall not be allowed to show that error occurred in stating amount in bill 
 of lading, 71. 
 
 that to constitute delivery of goods by carrier by water, receipt must he given 
 to the carrier by consignee or agent, 71. 
 
 that freight paid in advance may not be recovered back, though not earned, 71. 
 
 that notice published in three newspapers in city, of time and place of land- 
 ing goods by steamboat, is such a notice as places them at risk of con- 
 signee, 71. 
 
 among owners of tow-boats that first coming alongside of a ship, on a signal 
 for steam, has absolute towing-coiitract, 71. 
 
 requiring those in legal use of waters as a highway to j'ield to others who 
 are using them for an unlawful purpose, 71. 
 
 that contract made to furnish and carry coal to a certain port for sale may 
 be thrown up by either party, at his convenience, no damage to be claimed 
 from either, 71. 
 
 of railroad company requiring claims for damages to be made when goods 
 are delivered, or soon after, 72. 
 
 that before consignee can obtain his wheat from company's bins he must sign 
 receipt for quantity, 72. 
 
 that railroad will not be responsible for contents of cars of which their ser- 
 vants have the keys, 72. 
 
 that passengers cannot take their baggage to state-rooms, 72. 
 
 to land goods on banks of river, 72. 
 
 to deliver cargo at a distance from consignee's wharf, 72. 
 unreasonable usages of insurance companies, 73. 
 
 to require preliminary survey of damaged goods by port-wardens, 73. 
 
 to pay only two-thirds of gross freight on a total loss, 73. 
 unreasonable usages between master and servant, 73. 
 
 that if female slave, hired by month or week, is confined and delivered of 
 child during term, owner should pay certain sum to hirer, 73. 
 
 among wholesale dealers allowing salesmen pay for time lost by sickness, 
 without regard to length, 73. 
 
506 INDEX. 
 
 CUSTOM AND VBKQ^ — Continued. 
 
 for sawyers to ship lumber intrusted to them, and converted into logs, to 
 
 lumber factors, to be sold by them, 73. 
 that person employed to cut staves from another's bolts has right to take to 
 
 his own use clippings, corner-pieces, and culls, without consent of owner, 
 
 73. 
 of plasterers to charge not only for space covered, but for one-half of surface 
 
 occupied by openings, 73. 
 unreasonable usages among public officers, 74. 
 
 for flour inspector to take to his own use flour drawn from barrel in process 
 
 of inspection, as perquisite, 74. 
 of government officers to accept bills without consideration, or to pledge 
 
 credit of nation as surety for accommodation of contractor, 74. 
 for holders of settlements and preemptions of land to give one-half to 
 
 another for surveying and paying expenses for carrying claims to grant, 74. 
 in making surveys for locations of government land granted to settler, to 
 
 include more land than warrant actually called for, 74. 
 unreasonable usages among principal and agent, 75, 77. 
 
 that one, without authority from owner of lands, may dispose of them on 
 
 ordinary terms, and bind owner, 75. 
 among owners of vessels to accept bills of their masters for supplies fur- 
 nished abroad, 75. 
 that the master of a vessel, as such, may purchase a cargo on account of 
 
 owners without authority, 75. 
 to sell vessels without authority from owners, 75. 
 for broker, employed to purchase stock, to buy stock for himself, without 
 
 principal's knowledge, 75. 
 that agent may sell property of principal before he is instructed to do so, 75. 
 of agents, in collecting drafts for absent parties, to surrender them to drawees 
 
 at maturit}', and take checks upon banks, 75. 
 of brokers of tanned skins to Insert in memorandum of sale warranty of 
 
 quality, 76. 
 of warehouse-keepers to have general lien on goods in their hands, 76. 
 that person employed as agent may engage in another business, 76. 
 for ship-brokers to receive a commission for introducing buyer to seller, 76. 
 for agent to act for both parties and receive pay from both, 76. 
 for insurance agent to receive commission on renewal premiums after ter- 
 mination of his engagement, 76. 
 of wharfingers to deliver goods without responsibility, 77. 
 miscellaneous unreasDiiable usages. 77. 
 
 to use and imitate the trade-marks of foreigners with impunity, 77. 
 
 of publishers of newspapers to insert advertisements after object of advertise- 
 
 ent has ceased, 77. 
 to mine coal without leaving pillars to support surface, 77. 
 that when persons clear place for soine-flshing, they hold it against world 
 
 during fishing season, 77. 
 of owners of mines to dispose of water pumped therefrom, by allowing it to 
 
 flow into adjacent natural watercourse, 77. 
 that outgoing tenant of farm shall look exclusively to incoming tenant for 
 
 compensation for seeds, 77. 
 the habit ofiin individual, 78-82. 
 
INUKX. 507 
 
 CUSTOM AND VS Ad's —Continued. 
 
 examples of this kind of evidence received, 78. 
 custom of party as to giving receipts, 79. 
 as to giving notice of additional insurance, 79. 
 as to signing will, 79. 
 custom of attorney in giving directions as to writs, 79. 
 
 habits of other attorneys in same place irrelevant, 80. 
 custom of railroad agents to mark cotton received, 80. 
 custom on board of trade, 80. 
 custom of bank clerk to settle books dally, 80. 
 of owner of mill to gire receipt for grain, 80. 
 of party to accept drafts only in writing, 81. 
 of bank clerk to personally notify parties, 81. 
 of notary as to mailing notice, 81. 
 
 party's practice may explain abbreviations an,d symbols in books, 81. 
 examples of this proof rejected, 81, 82. 
 
 custom of insurance agent to enter policy in book, 81. 
 of factor to enter sales, 81. 
 
 habit of justice of the peace to read over bills of sale to signers, 81. 
 to deliver executions to officer making attachment, 81. 
 custom does not obligate mode of executing contract, 82. 
 
 oral insurance contract good, though usually in writing, 82. 
 entries made in usual course of business, 82-84. 
 evidence after party's death, 82. 
 
 if the}' are party's books of account kept in regular course, 83. 
 shingle containing minutes of lumber hewed admissible, 83. 
 also notched stick and wooden tallies, 83. 
 memoranda of sawyers on boards, 83. 
 scraps of paper, 84. 
 tabular forms, 84. 
 single sale, though of more than one article, does not constitute a course of 
 business, 84. 
 general customs are judicially noticed, 96. 
 
 usage of mercantile establishments to furnish each others' customers .with 
 
 goods, 96. 
 to fish in private ponds, 96. 
 of church to keep a record, 96. 
 customs of brokers, 96. 
 custom of banking hours, 96. 
 other banking customs judicially noticed, 96. 
 particular usages and customs must be proved, 96. 
 necessary by parol evidence, 96. 
 
 particular customs of banks cannot be judicially noticed, 96. 
 nor custom of city as to grading streets, 97. 
 usages of another State, 97. 
 burden on party setting up usage, 97. 
 custom must be given in evidence, 97. 
 
 cannot be found by jury from their own knowledge, 97. 
 one witness may prove a custom, 97. 98. 
 
 contrai-y, dictum, in Wood v. /// -kok, criticised, 97. 
 conflicting decision in South Carolina, 98. 
 rule in Alabama, 98. 
 
508 INDEX. 
 
 CUSTOM AND VSA.Q^ — Continued. 
 in the Federal courts, 98. 
 in Massachusetts, 98. 
 a usage of a particular business is not sufficiently proved by the testimony of 
 only one witness to support it, where another witness, equally familiar with the 
 business, denies it, and where other witnesses on the subject might be had. 
 Parrott v. Thaeher, 85, 99. 
 mode of proving usages and customs, 99-103. 
 where legal liability is to be affected, 99. 
 fact of usage must be shown, 99. 
 and not opinions of parties, 99. 
 
 witness need not testify to individual cases, if he swear to the /aci, 100. 
 where mercantile terms are to be explained, 101. 
 persons may give their opinions, 101. 
 but not their opinion on its legal effect, 101. 
 admissibility of dictionary, 102. 
 to explain doubtful words in will, 102. 
 usages provable by parol, 102. 
 of land office, by published decisions, 102. 
 reported case of usage, admissible in subsequent case, 102. 
 
 unless its decision was by agreement of parties, 103. 
 decisions of State courts evidence in Federal courts, 103. 
 mining customs ; whole book must be put in, 103. 
 who may be called as witnesses, 103. 
 
 any person who knows of the custom as a fact, learned by observation, 103. 
 , custom of architects may be proved by builders, 103. 
 of adjusting losses on iron, by insurance brokers, 103. 
 of banks, by customers of bank, 103. 
 ■ order of proof, 103. 
 
 object and pertinency of proof must bo shown, 103. 
 proof of notice may be reserved, when, 103. 
 proper questions, 103. 
 
 inquiry as to the mode of business not a question of law, 103. 
 quantum of evidence, 104. 
 
 witnesses need not all Hgree, 104. 
 contradictory evidence, 104. 
 newly discovered evidence, 104. 
 law and fact, 104. 
 
 whether usage is established is for jury, 104. 
 whether it is binding, for the court, 104. 
 reasonableness of usage, for court, 104. 
 in cases of written instruments, 105. 
 M. & W., fruit-brokers in London, being employed by F. & D., merchants in 
 London, to sell for them, gave them the following contract noU;, addressed to 
 F. &D. ; " We have this day sold for your account to our principal * * * 
 tons of raisins. M. & W., brokers." The principal having accepted part of 
 the raisins, and not having accepted the rest, F. & D. brought an action on the 
 contract against M. & "W., and sought to make thorn personally liable by the 
 custom of the trade. On the trial, in addition to evidence of a custom in the 
 London fruit-trade that if brolcers did not give the names of their principals in 
 the contract, they were held personally liable, although they contracted as brokers 
 for a principal, they offered evidence of a similar custom in the London colo- 
 
INDEX, 509 
 
 CUSTOM AND VS AG'S— Continued. 
 
 nial market. Held, that the latter was also admissible, being evidence in a sim- 
 ilar trade in the same place, and as tending to corroborate the evidence as to 
 the existence of such a custom in the fruit trade. Fleet v. Murton, 90. 
 evidence of customs at different places or in other trades, when admissible, 105- 
 107. 
 custom of one manor not admissible to prove custom of another, 105. 
 rule different as to usages of trade in England, 105, 106. 
 American rule less liberal, 106, 107. 
 where custom in one place is proved, evidence that it is different in another 
 inadmissible, 107. 
 construction of common-law customs, 107-210. 
 customs construed strictly, 107, 108. 
 
 illustrations of this rule, 108. 
 usages of trade construed strictly, 108. , 
 
 usage to deliver goods to mate will not excuse delivery to deck-hand, 
 
 108. 
 usage of passenger confined strictly to passengers, 108. 
 of carrier to notify consignee at store, 108. 
 of bank teller to issue certificates of deposit does not include certifying 
 
 checks, 108. 
 other instances, 108, 109. 
 
 usage of railroad to allow employees to ride free on its trains not ex- 
 tended to paying their passage on other roads, 109. 
 usages of railroads strictly construed, 109. 
 usages cannot act retrospectively, 109. 
 
 usages disregarded in courts of law not regarded in chancery, 109. 
 conflict of laws, 110-112. 
 
 usages of place where contract is drawn govern in its construction, 110. 
 when one party a foreigner, 111. 
 when contract by correspondence, 111. 
 other cases, 111. 
 contract made in B. with manufacturers in P., usages of market in P. 
 
 govern. 111, 112. 
 customary covenants in deed governed by lex rei sitae, 112, 
 pleading, 112. 
 
 general usages or customs need not be pleaded, 112. 
 but aliter as to local customs, 112. 
 and those excusing non-performance of legal duties, 112. 
 all requisites of usage must be averred, 112. 
 
 but averment of knowledge unnecessary, when, 112. 
 when usage not sufficiently pleaded, 112. 
 
 evidence of usage admissible in New York under general denial, 112. 
 usages of banks, and as affecting negotiable and assignable paper, 116, 204-214. 
 powers of bank officers as affected by usage, 205. 
 power to certify checks, 205. 
 proper officer to receive payments or deposits, 205. 
 transfer of shares to cashier vests legal title in bank, 206. 
 a custom on the part of all the banks in a particular place to demand pay- 
 ment and give notice to indorsers of negotiable paper on the fourth day 
 of grace is binding on an indorser if known to him. Renner v. Bank of 
 Columbia, 116. 
 
510 INDEX. 
 
 CUSTOM AND VSAQX— Continued. 
 
 usages of banks as to demand and notice govern, 206, 207. 
 but some demand always necessary, 207. 
 discordant decisions, 208. 
 days of grace, how eflfected by usage, 208. 
 
 usage that paper in form of note is entitled to no grace, inadmis- 
 sible, 208. 
 duties of bank as collecting agent, 209. 
 
 may be delegated to notary by usage, 209. 
 
 conflicting decisions, 209. 
 may take check in payment by usage, 210. 
 payment by bank must be in good money, 210. 
 inconsistent usages invalid, 210. 
 payment of forged check by bank is at its peril, 211. 
 
 how far this rule affected by usage, 211, 212. 
 right of holders of one-half of bank-note, 212. 
 
 usage of bank not to pay any of its bills voluntarily cut in two Invalid, 
 
 212. 
 so of custom to pay only half the amount on the presentation of each 
 half, 213. 
 bank iona fide holder of check by usage, 213. 
 purchaser of past-due negotiable paper takes it subject to equities, 214. 
 
 usage in opposition to this rule void, 214. 
 note may be negotiable by custom of a particular locality, 214. 
 common carriers, rights and liabilities of, as affected by custom, 123, 214. 
 definition of common carrier qualified by usage, 214. 
 carrier liable as such for all property which by custom he undertakes to 
 
 carry, 215. 
 not liable till goods are "delivered" to him, 215. 
 
 what a good delivery determined by usage, 215-217. 
 usage to deliver to mate, 216. 
 to leave goods on wharf, 216. 
 to deliver to driver of coach, 216. 
 
 delivery of baggage at depot without notice to co-ipany good by 
 rnstom, 217. 
 usage must be strictly followed, 217, 218. 
 complete delivery not affected by a contrary usage, 218-220. 
 
 actual delivery of goods to railroad not affected by usage to firit 
 
 sign bills of lading, 218. 
 so of usage not to consider baggage as delivered until " checked," 
 220. 
 usage cannot prevail against express directions, 228, 229. 
 delivery not good on prohibited days, 229. 
 
 this rule, how affected by usage, 229, 230. 
 if by usage consignee provide appliances for delivery, carrier not liable for 
 
 injuries received therein, 231. 
 usage may require a personal delivery, 231. 
 a complete delivery not affected by a different usage, 231. 
 express companies required by law to make personal delivery, 231. 
 usage not to make personal delivery rejected, 232. 
 but allowed in some cases, 233. 
 
 these latter eases criticised, 233-235. 
 
INDEX. 511 
 
 CUSTOM AND VSA^Q^E — Continued. 
 
 expressman niust notify consignor of consignee's refusal to accept goods, 235. 
 
 contrary usage allowed, 235. 
 liabilities of connecting carriers, 235, 236. 
 carrier's charges in absence of agreement fixed by usage, 236, 
 freight not earned may be recovered back, 237. 
 contrary usages void, 237, 238. 
 liability for property while in transit, 221. 
 
 custom that shipper may control property excuses carrier, 221. 
 conflicting decisions, 221. 
 carrier by water must store goods on deck, 221. 
 this rule altered by usage ; illustrations, 221. 
 
 usage as affecting liability of carrier for goods injured by contact with 
 other goods, 222. 
 liability of carrier continues until he has made a delivery of the property, 
 222. 
 the limits of this rule obtained by evidence of usage, 222-224. 
 formerly personal delivery was required of carrier, 224 
 
 but usages of trade have modified this, 225. 
 carrier required by law to give notice of arrival of goods, 225, 226. 
 this rule altered by usage, 226. 
 
 where the defendants, who were common carriers on Lake Cham- 
 plain, were intrusted with a package of bank-bills to carry from 
 B. to P., directed to the cashier of the bank at P., and t'ley deliv- 
 ered them to the wharfinger of the wharf at P., at which place 
 their boat touched, from whom the package was stolen, in an action 
 by the consignors for the loss : held, on the first appeal, that it 
 was competent for the defendants to prove that it was their uni- 
 form usage, well known to the plaintiffs, to deliver such packages 
 of money, when intrusted to them, to the wharfinger having 
 charge of the wharf where the boat landed, without giving any 
 notice to the consignee. Held, further, on a second appeal, that 
 it was not essential to show that the plaintiffs had actual knowledge 
 of this usage. Farmers', etc.. Bank v. Champlain Transp. Co. 133. 
 other illustrations, 227. 
 
 ca=es where similar usage as to delivery did not prevail, 227, 228. 
 carrier has no power to sell goods in his charge, except in emergency, 238. 
 
 contrary rule recognized, 238. 
 carrier has only a particular lien on goods for his unpaid charges, 238. 
 
 but general lien may be given him by custom, 238-240. 
 carrier giving credit for charges loses his lien, 241. 
 
 but usage may allow this, 242. 
 bills of lading construed by usage, 242. 
 usage must be uniform, 242. 
 
 carriers' liability cannot be restricted by usage, 242. 
 statutory exemptions to carriers' liability cannot be waived by usage, 243. 
 corporations, their powers and liabilities as affected by usage, 145, 243-248. 
 requisite of corporate seal altered by usage, 243. . 
 powers of oflScers of corporations affected by usage, 244, 245. 
 a corporation may by usage and practice render itself liable on contracts 
 executed in a different mode from that authorized in its charter. Bidkley 
 V. Derby Fishing Co. 145 
 
512 INDEX. 
 
 CUSTOM AND VS AGE— Continued. 
 
 insurance company liable on policy executed in mode different from 
 
 that prescribed by charter, 245. 
 on agreement signed by agent, 245, 246. 
 on parol contract, 245. 
 and on bill of exchange, 245. 
 
 bank, on certificate of deposit signed only by president, 246. 
 on contract for services, 245. 
 on bill of exchange indorsed by cashier, 245. 
 requisite notice of transfer of shares waived by usage, 246. 
 so of consent of directors to transfer, 246. 
 corporation has no lien on shares of stockholder for Indebtedness to it, 24S. 
 
 but may by usage, 247. 
 transfer of certificates by usage, 248. 
 
 notice to stockholders published in newspaper valid by custom, 248. 
 usages in the law of Insurance, 148, 248-267. 
 Mr. Justice Bullbk's opinion, 248. 
 
 similar remarks as to the power of usage made in other cases, 248. 
 these views criticised, 248, 249. 
 the correct rule stated, 249. 
 Mr. Arnould's four rules, 250. 
 usages in marine insurance, 250. 
 
 every general usage prima facie part of the policy, 241. 
 commencement and end of risk, 252. 
 arrival and delivery, 253. 
 
 evidence that it is the usage of the carrying trade for one boat on a voy- 
 age to stop and aid another boat in distress is competent to show that 
 such is not a deviation. Walsh v. Homer, 160. 
 deviation by boat leaving course, waived by usage, 254. 
 
 except where policy contains positive directions, 254. 
 doctrine of general average as affected by usage, 255. 
 policy covers such goods as are considered covered by usage, 258. 
 apportionment of premium not allowed where risk is entire, 256. 
 this rule different by usage, 256. 
 inconsistent rulings, 256, 257. 
 other instances of usages of marine insurance, 257. 
 usages in fire insurance, 258. 
 
 contracts include all usages of the particular business insured, 268. 
 in a policy of fire insurance upon printing and book materials in ft 
 building, privileged for a printing-office and bindery, there was a con- 
 dition exempting the insurer from liability for any loss occasioned by 
 camphene. The property insured was destroyed by a fire caused by 
 a workman accidentally dropping a lighted paper into an open jar of 
 camphene, which was kept in the building for use in the busineaa. In 
 an action on the policy, the jury having found that when the policy 
 was effected it was the general and established custom among printers 
 to use camphene in the printing of books, and that ita use was not 
 only advantageous, but necessary : held, that the oxemptioa extended 
 only to a loss occasioned by the use of camphene for purposes otber 
 than that of printing. Harper v. City Ina. Co. 148. 
 customary Incidents of business insured — illu3tration.s, 258-260. 
 what is an increase^of risk may be determined by usage, 262. 
 
INDEX. 513 
 
 CUSTOM AND V SAG'S,— Continued. 
 
 does not include usual and necessary repairs on building, 262. 
 changes in adjoining premises, 268. 
 
 amount of loss : usage as to stock kept, admissible to determine, 264. 
 payment of losses by mutual companies, usages as to, 264. 
 reinsurance : contract of, not affected by usage, 265. 
 usages in life insurance, 265. 
 
 usage to consider insurance made, though premium not paid, 265. 
 usage of company to allow days of grace for payment of premium, 265. 
 inconsistent rulings, 266. 
 
 such usage not admissible in contradiction of policy, 266, 267. 
 defence of drunkenness not sustainable by reputation, 267. 
 usage to require proof of death by family physician not admissible if 
 
 unknown to insured, 267. 
 not competent to show that person addicted to spirits is not regarded as 
 an insurable subject, 267. 
 customs between landlord and tenant, 267-276. 
 
 relation of landlord and tenant implies agreement to act according to custom 
 
 of country, 267, 268. 
 usage may show on what property and to what extent rent is collectable 267. 
 at common law, tenant for years not entitled to the waygoing crop, 263. 
 a custom that a tenant, whether of parol or deed, shall have the way- 
 going crop after the expiration of his term is good. Wigglesworth v. 
 Dallison, 169. 
 this custom recognized in America, 268. 
 except in Virginia and Canada, 269. 
 other customs between landlord and tenant, 269, 270. 
 
 custom requiring lessor to clean leased house before lessee enters, 270. 
 for proprietors of common stairwny to use walls for signs, '270. 
 for adjoining owners to pay expense of partition fences, 270. 
 or common walls, 270. 
 
 payment of expense of conveyances regulated by custom, 270. 
 customs as to term of tenancy, 270. 
 explaining terms of lease, 271. 
 what are fixtures, determined by custom, 271, 272. 
 
 except where parties have expressly contracted, 272. 
 customs not admissible to contradict lease, 272. 
 when lease not inconsistent with custom, 273-276. 
 customs between master and servant, employer and employee, 276-279. 
 as to terms and conditions of service, 276. 
 may show length of hiring, 276. 
 
 in an action for wrongfully dismissing the editor of a newspaper, the 
 declaration stated that he was engaged for a. year. There was no direct 
 evidence as to the time for which he was engaged. Held, that he might 
 show that it was customary for editors of newspapers to be engaged foi 
 a year unless there was an express stipulation to the contrary. Hoi- 
 croft V. Barher, 175. 
 usage as to notice between printers and proprietors of newspapers, 276. 
 as to term of service of dry goods clerks, 276. 
 
 as to privilege of journeymen to work for themselves certain hours, 277. 
 of business houses to furnish each other's clerks with goods, 277. 
 as to proper performance of service, 277. 
 
 33 
 
514 INDEX. 
 
 CUSTOM AND VS AGE— Continued. 
 
 usage that printer of book cannot print copies for himself. 277. 
 
 that employment of architect to make plans gives him supurintendence of 
 
 building, 277. 
 that literary writer may employ assistants, 277. 
 as to wages and compensation, 278. 
 
 usages as to mode of paying seamen, 278. 
 charges of veterinary surgeons, 278. 
 right of commission merchants to commission, 278. 
 charges of professional men, 278. 
 of printer of books, 278. 
 
 of proprietor of newspaper to charge for advertisement until counter- 
 manded, 278. 
 other cases, 278, 279. 
 contract not wholly performed; quantum meruit may be allowed by usa<;e, 
 279. 
 customs in the law of partnership, 178, 279-284. 
 
 partner may bind firm by act within usual scope of business, 279, 280. 
 
 it is the custom on the Alabama River for the proprietors of steamboats 
 to purchase salt at Mobile, to be carried up the river and sold. Held, 
 that in the absence of a contrary stipulation in a partnership agree- 
 ment made for the purpose of running a steamboat on that river, the 
 firm would be liable for salt purchased by a partner at Mobile for trans- 
 portation and sale on the boat. Waring v. Grady, 178, 281. 
 usage as to name of firm, 282. 
 common report cannot prove existence of partnership, 282. 
 
 nor dissolution, 282. 
 usage may establish partnership as to third parties, 283. 
 as by issuing joint bills and occupying same store, 284. 
 or advertising or distributing band-bills in firm name, 284. 
 or marking merchandise, 284. 
 usage in the law of principal and agent, 284. 
 
 agency must be executed in accordance with usage, 284, 285 
 authority of agent governed by usage, 286, 287. 
 
 T., a factor, having goods consigned to him by G., sold them on three 
 months' credit, taking in payment the purchaser's promissory note to 
 himself, but the purchaser, before the maturity of the note, became 
 bankrupt. In an action by G. against T. for the value of the goods 
 sold: held, that evidence that he had acted accordins; to the custom 
 of the place was admissible, and would discharge him from liability. 
 Goodenow v. Tyler, 180. 
 other illustrations, 286, 287. 
 usages of the stock exchange, 287. 
 agent's authority cannot be delegated, 28 
 
 unless authorized by custom, 289. 
 factor has no power to sell on credit, 289, 290. 
 
 this rule changed by usage, 290. 
 factor has no power to pledge goods, 290. 
 but may by usage, 290. 
 
 conflicting decisions, 290. 
 where usage requires, agent must insure g^ddg, 291. 
 payment to agent as afl'eoted by usage, 292. 
 
INDEX. 515 
 
 CUSTOM AND VSAQ'E — Continued. 
 set-off, 292, 293. 
 usage may settle agent's compensation, 293. 
 
 illustrations, 294. 
 profits made by agent belong to principal, 294. 
 
 inconsistent usage void, 294. 
 agent cannot act for vendor and vendee, 294. .; 
 
 inconsistent usages void, 295. 
 
 other cases, 296, 297. " 
 
 usage cannot excuse disregard of instructions, 297. 
 
 illustrations of this principle, 298-300. 
 agent not nersonally bound on contract made for principal, 300. 
 
 but 1. ly be by usage, 301. 
 agent contracting in his own name is personally liable, 'A02. 
 
 inconsistent usage void, 302. 
 attorney and client, 303. 
 
 attorney may charge term fee by usage, 303. 
 or retainers, 803. 
 
 or may be personally liable for sheriff 's fees, 803. 
 usages of trade affecting sales, 303-318. 
 
 A. purchased of B. a number of bales of cotton, at a certain price per 
 pound. Several months prior to the sale the cotton had been weighed by 
 the wharfinger, and marked on the bags and in the books at 63,0-13 pounds. 
 When the cotton was delivered it was reweighed by A., and found to 
 amount to only 61,205 pounds. A. thereupon paid B. for the cotton as 
 of the latter weight, but refused to pay for more than he had actually 
 received. In a suit by B. against A. for the diffei-ence, it was proved that, 
 according to the custom of the trade, cotton was weighed by the wharf- 
 inger before it was put in store, and the weight marked on the bags and 
 entered in books kept for that purpose, and that where a sale was made 
 without any stipulation to the contrary, it was understood as being made 
 upon the basis of the weights thus ascertained. Held, that A. was bound 
 by the custom, and that B. was entitlad lo i-ecover. Conner v. Robinson, 
 190. 
 other illustrations, 804, 305. 
 terms of sale, 305. 
 price-credit, 305. 
 warranties on sales, 306-308. 
 
 a warranty may be implied from the custom of a particular trade. It being 
 usual, in the sale by auction of drugs, to state in the catalogue if they 
 were sea-damaged or not, and if nothing is said as to their quality, they 
 are supposed to be sound, the defendants offered for sale a quantity of sea- 
 damaged pimento, without saying anything about its condition, which was 
 purchased by the plaintiff. Held, that this was equivalent to a sale of the 
 goods as and for goods that were not sea-damaged, and that an action lay 
 for the fraud. Jones v. Bowden, 186. . 
 conflicting cases, 306-308. 
 03age on sales by sample, 308. 
 on sales by manufacturer, 309. 
 pledgeor and pledgee, 310. 
 
 rules of law as to, not affected by contrary custom, 310. 
 sales by auction, 310, 311. 
 
516 INDEX. 
 
 CUSTOM AND VSAG^E — Continued. 
 
 purchaser wishing to rescind must rescind entire contract, 311. 
 
 contrary usage valid, 311, 313. 
 delivery of goods and passing of title, 313. 
 how affected by usage, 313. 
 
 where a custom exists in a certain business for the buyer to leave 
 goods bought by him in the hands of the seller, and it is so noto- 
 rious as to be practically known to all persons dealing with the 
 seller in his business, goods so left in the hands of the seller for a 
 ti lie not longer than is clearly within the custom do not, on the 
 bankruptcy of the seller, pass to his assignee under the Bankruptcy 
 Act. Priestley v. Pratt, 201. 
 other illustrations, 314, 315. 
 payment may be made according to usage, 315. 
 
 illustrations, 316. 
 where there is a general usage in any particular trade or business to charge 
 and allow interest, parties having knowledge of the usage are deemed to 
 contract with reference to it. Esterly v. Cole, 198. 
 although the law does not in general give interest upon an open running 
 account for goods sold, yet an agreement to pay interest may be inferred 
 fi'om a uniform practice of the creditor to charge interest, known to the 
 customer. Ibid. 
 other instances, 316, 318. 
 negligence as affected by custom, 318-329. 
 
 what is diligence, to be .judged by the habits of the country, 318, 310. 
 
 carrier must take customary care of property, 3iJ0. 
 
 custom for consignee to furnish means for delivery may excuse carrier, 321, 
 
 322. 
 other cases, 322. 
 
 negligence in other bailments may be judged by usage, 323, 324. 
 as affecting the contributory negligence of a s Tvant, 321-328. 
 customs to excuse negligence rejected, 328, 329. 
 evidence of custom on questions of nuisance, 330. 
 on question of fraud, usage relevant, 330. 
 
 but custom cannot establish a fraud, 330. 
 proper use of public or private way depends on custom, 331. 
 case of entering on another's lands, 332. 
 or letting cattle run, 332. 
 
 proper use of watercourse depends on custom, 332. 
 offices and officers, 333. 
 
 usages may prescribe officer's duties, powers, and compenBation, 383. 
 evidence of usage on prosecution for disturbing worship, 333. 
 
 for carrying concealed weapons, 333. 
 parol evidence inadmissible to vary a written contract, 304. 
 but it may explain an amblgiiitv, 364. 
 or show a collateral agreement, 364. 
 or show forgery, or I'raud, or duress, 365. 
 other exceptions, 365. 
 admissibility of usage to affect written contracts, 365. 
 views of the text-writers and judges, 366. 
 usage may explain technical or unintelligible terms, 367. 
 may explain even unambiguous words if used In a peculiar mod3, 367 
 
INDEX. 517 
 
 CUSTOM AND VSAdE — Continued. 
 
 In a lease of a rabbit-warren, the lessee covenanted that at the expiration of 
 the term he would leave on the warren ten thousand rabbits, the lessor 
 paying for them £60 per thousand. In an action by the lessee against the 
 lessor for refusing to pay for the rabbits left at the end of the term : held, 
 that parol evidence was admissible to show that by the custom of the 
 country where the lease was made, the word "thousand," as applied to 
 rabbits, denoted tweloe hundred. Smith v. Wilson, 335. 
 classification of the cases, 368. 
 
 usage admissible to add unexpressed terms to written contracts, 369. 
 incidents annexed to contracts generally, 369. 
 
 illustrations, 370. 
 incidents added by usage cannot establish a contract, 370. 
 
 in the absence of a contract, evidence of usage and custom is irrelevant. 
 The authorized officers of a municipality having decided to erect a 
 public building, offered prizes for the best plans, with costs, etc. T., 
 an architect, was awarded one of the prizes, with notice that "the 
 award should not be considered as indicating a preference for either <if 
 said plans, as to which should be finally adopted, from which the said 
 building should be erected," and the amount of the prize ($1,000) was 
 paid to him. Subsequently, by resolution, the officers adopted T.'s 
 plan, subject to conditions. Held, that this resolution was a voluntary 
 act of the ofllcers, and did not amount to a contract between them and 
 T. Held, farther, that in an action by T. against the oflicers, evidence 
 of a u=age and custom among architects that in the absence of a spe- 
 cial contract the superintendence of the construction of a building 
 belongs to the architect whose plans are adopted, and that where prizes 
 for plans are offered the plans of the successful competitors belong 
 to thom, and if subsequently adopted as the plans to build by, they 
 are always paid for in addition to the prize itself, was properly ex- 
 cluded. Tilley v. Oity of Chicago, Zo6. 
 parties differing as to usage, does not destroy contract, 371. 
 usage not admissible to supply disputed terms. 371. 
 usage to explain contracts of sale, 372-382. 
 
 quality and description of goods contracted for ascertained by usage, 
 372-375. 
 
 "horn chains" in agreement to manufacture, 372. 
 "on foot high" in contract for trees, 372. 
 other instances, 372-375. 
 
 (See "WoKDS AND Phrases.) 
 quantity and price ascertained by usage, 375-378. 
 "crop of fiax" in contract, 375. 
 "barrel" in sale of oil, 376. 
 "one thousand shingles" in contract, 376, 
 other cases, 377-381. 
 
 (See Words and Phrases.) 
 contradictory decisions; 379, 380. 
 usage to add incidents to contracts of pr'"('ipal or agent, 382-386. 
 
 "defendants, brokers, being employed by S. to purchase oil, signed a note 
 as follows : " Sold this day for Messrs. T.," plaintiff's brokers, "to our 
 principals, ten tons of linseed oil," etc., "quarter per cent brokerage 
 to " defendants. This note defendants delivered to Messrs. T. Defend- 
 
518 INDEX. 
 
 CUSTOM AND V^AOr^ — Continued. 
 
 ants did not disclose the name of their principal, S., who became insol- 
 vent and did not accept the oil. Plaintiff then sued defendant for 
 not accepting the oil, laying the sale as by himself to defendants. 
 Defendants denied the contract. On the trial, plaintiff proved a cus- 
 tom in the trade that when a broker purchased without disclosing the 
 name of his principal, he was liable to be looked to as purchaser. 
 Held, that evidence of the custom was admissible, as not contradicting 
 the written instrument, but explaining its terms or adding a tacitly 
 implied incident, and that the action lay. Hwrnfrey v. Dale, 342. 
 other cases, 382-386. 
 to expl ain and add incidents to contracts of suretyship, 386. 
 and iigi-eements between attorney and client, 386. 
 other cases, 386. 
 
 (See WoKDS and Phrases.) 
 usage may show whether written contract is a bailment or sale, 387. 
 usage admissible to explain deeds, 387-389. 
 {JTor wiJi-ds and phrases in deeds explained by usage. See Words and Phrases.) 
 sporting usages, 389, 390. 
 
 that in agreement for horse race "across a country" does not allow 
 
 riders to go through gates, 389. 
 custom of sportsmen that when either party relinquishes deposit, bet is 
 at an end admissible, 390. 
 mining agreement explained by usage, 390. 
 meaning of "level" in lease, 3^0. 
 customs of mining, 390, note, 
 contract for labor and materials explained by usage, 390-394. 
 
 a contract for the excavation of lots in a city, so as to make them con- 
 form to a certain plan, was silent as to whom should belong the sand 
 or other material taken therefrom. A custom existed, long estab- 
 lished and notorious, that it went to the excavator, and not to the - 
 owner of the lots. HeW, that evidence of the custom was admissible 
 to explain the contract of the parties. Cooper v. Kane, 339. 
 mode of measuring work estimated by custom, 391, 392. 
 other instances, 393, 394. 
 
 {See also Words and Phrasks.) 
 contracts for personal service explainable by usage, 394-398. 
 
 as that servants are entitled to holidays although covenanting to "lose 
 
 no time," 394. 
 or that actress is only entitled to pay during season, though engaged for 
 
 " tliree years," 394. 
 or that servant is entitled to notice of dismissal where contract is in 
 
 writing, 394-396. 
 what is meant by particular description of trade explainable by usage 
 394, 397. 
 as "cabinet and mahogany door-maker" in agreement to teach 
 
 that trade, 394. 
 to show duties of "salesman," 397. 
 of "lace buyer," 397. 
 
 what is included in "ship carpenter's " work, 397. 
 what is meant by "same ground," 397. 
 what is expected of girl engaged us "danseuse," 397, 398. 
 
INUKX. 519 
 
 CUSTOM AND USAGE— Continued. 
 
 usage admissible to explain wills, 398-400. 
 
 a testator gave to. certain devisees "all ray back lands." Held, that 
 parol evidence was admissible to designate the premises, as by show- 
 ing that certain lands owned by him were usually known by that de- 
 scription to him, and among his family and neighbors. Byeraa v. 
 Wheeler, 351. 
 to explain devisee by evidence of usage, 398. 
 testator's habit of using particular term in particular sense, 398, 399. 
 
 illustrations, 398-400. 
 custom to transfer land by death-bed gift without will invalid, 400. 
 custom to give farms to eldest sons not admissible to establish gift, 400. 
 usage admissible to explain words in policies of insurance, 401. 
 extent of the rule, 401. 
 words explained by usage in marine policies, 401-405. 
 
 {See also "Words and Phkasbs.) 
 geographical terms explained by usage, 403-405. 
 illustrations, 404, 405. 
 
 (See also Words and Phrases.) 
 words explained by usage in fire-policies, 405-408. 
 [See also "Words and Phrases.) 
 usage admissible to explain terms in bills of lading and other maritime con- 
 tracts, 408-411. 
 
 custom which precludes carrier from denying receipt of amount stated 
 
 in bill of lading bad, 408. 
 words and phrases explained by usage, 408-411. 
 {See also "Words and Phrases.) 
 usage inaumissible when repugnant to express contract, 434. 
 contradictory expressions by the courts, 434, 435. 
 the true rule stated, 435. 
 contracts between carrier and customer, 435. 
 
 cannot be contradicted by evidence of usage, 435-438. 
 contracts of insurance, 438-441. 
 
 cannot be contradicted by usage, 438-441. 
 
 in an action of a policy of insurance on a ship, her tackle, apparel, ioat, 
 and other furniture, evidence of a usage tlftt boats slung on the out- 
 side of the ship, on the quarter, are not protected, is inadmissible, as 
 contradicting the express terms of the contract. Blacketi v. Royal 
 Exchange Assur. Co. 413. 
 agreements between landlord and tenant, 441. 
 
 contract for time certain cannot be evaded by custom, 441. 
 tenant agreeing to give landlord waygoing crop cannot claim it by cus- 
 tom, 441. 
 other instances, 441. 
 contracts of hiring, 441. 
 
 if express, cannot be altered by contradictory customs, 441. 
 contracts for work and labor, 441-443, 452. 
 
 A. agreed to make B.^a " satisfactory " suit of clothes. A. afterwards de- 
 livered the clothes to B., but B. relumed them to A. with a notice that 
 they, did not fit, and were unsatisfactory. In a suit by A. against B. 
 for the price : held, that evidence that a custom existed among tailors 
 of having garments tried on after they were finished, and then making 
 
520 ixuKX. 
 
 CUSTOM AND US XGE — Continued. 
 
 any (iltenitions that might be necessary to make them fit, was inadmis- 
 sible, hi>uau9e it contradicted the terms of an expi-ess contract. Brown 
 V. Foster, 417. 
 other cases, 441-443. 
 principal and agent, 444, 445. 
 
 express contracts between, cannot be contradicted by usage, 444, 445. 
 bankers and brokers; bills and notes, 445. 
 
 customs in contradiction to contract inadmissible, 445, 446, 452. . 
 contracts of sale, 447. 
 
 if not ambiguous, cannot be altered by usage, 448-452. 
 criticism of some cases, 448. 
 express agreement between innkeeper and guest cannot be altered by custom, 
 453. 
 statutes as affected by usages and customs, 453. 
 usages repugnant to statute void, 453. 
 words defined by act of Parliament, 454. 
 contrary usages void, 454. 
 
 (See Words and Phrases.) 
 ■where a statute declares that every pound of butter shall weigh sixteen 
 ounces, u, custom that every poiuid of buttor sold in a particular town 
 shall weigh eighteen ounces is bad. Noble v. Durell, 420. 
 statutes prescribing officer's duties not affected by usage, 455. 
 
 illustrations, 455-458. 
 statutes prohibiting usury — contrary usages void, 45S. 
 statutes requiring contracts with seaman to bo in writing — contrary usage 
 
 void, 458. 
 statute prohibiting carrier *rom limiting common-law liability cannot be 
 
 altered by usage, 459. 
 statute declaring violent and tumultuous acts, riot, 460. 
 
 custom of the country void, 460. 
 statute requiring sales of liquor to be for cash, 460. 
 
 custom to sell at thirty days illegal, 460. 
 statute allowing days of grace on note, 460. 
 
 contrary usage void. 460. 
 statute requiring assignment by writing, 460. 
 
 custom to assign by delivery void, 460. 
 statutes as to partition fences — contrary custom, 460. 
 statute prohibiting work on Sunday, 460. 
 
 custom of barbers to work on that day void, 460. 
 statutes as to watercourses — contrary custom void, 461. 
 statute requiring safety-plugs on steam-boilers, 461. 
 
 contrary custom in manufacturing estalilishments void, 461. 
 statutory exemptions cannot be waived by usage, 462. 
 s.tatutes may be construed by usage, 462-465. 
 
 municipal charter and powers as affected by usage, 463. 
 unlawful expenditure of money by municipal corporations not valid by 
 usage, 464. 
 eommon-law custom not inadmissible because in conflict with leo-al rules 465. 
 gavelkind and borough-English examples of this, 465. 
 usages contrary to legal rules valid, 465. 
 
 ntradictory expressions of some judges, 465, 466. 
 
INDKX. 521 
 
 CUSTOM AND VSA.GE — Continued. 
 
 banks and banking — usages against legal rules admitted, 467. 
 
 usages against legal rules rejected, 467, 468. 
 common carriers — usages against legal rules admitted, 468. 
 
 usages against legal rules rejected, 469. 
 corporations — usages against legal rules admitted, 469. 
 insurance — usages against legal rules admitted, 469. 
 
 usages against legal rules rejected, 470. 
 landlord and tenant — customs against law admitted, 470. 
 contracts for personal services — customs against law admitted, 471. 
 
 customs against law rejected, 471. 
 partnership — customs against law admitted, 471. 
 principal and agent — usages against legal rules admitted, 471. 
 asages against legal rules rejected, 471. 
 
 it is a rule of law that an agent cannot act as such for both vendor 
 and purchaser, and receive payment for nis services from both. 
 Therefore, a custom among brokers in the city of Baltimore that 
 in exchanges of real estate they are entitled to a commission of 
 two and a half per cent from each party on the value of the 
 property exchanged, is invalid. Raisin v. Clark, i'dl. 
 vendor and purchaser — usages against legal rules admitted, 472. 
 
 usages against legal rules rejected, 47£. 
 miscellaneous usages admitted or rejected because contrary to rules of law, 
 
 472. 
 necessity for reviewing the contradictory cases, 473. 
 the facts and opinion of the judges in these cases, 474-484. 
 the above cases examined, 484, 485. 
 the true meaning of the rule that a usage must not conflict with the law, 486. 
 
 CUSTOMS OF MERCHANTS, {See also Vendor and Pukchaskk.) 
 customs of merchants defined, 18. 
 
 adopted by the law-merchant, they become a part of the common law, 20. 
 practice of the old judges, in their establishment, to confer >vith merchants 
 
 as to their existence and effect, 20. 
 general custom of merchants judicially recognized by the courts, 20. 
 ' local customs of trade defined, '20. 
 
 customs of merchants as to what is meant by " borrowed money," 34. 
 habit of merchants to pay debts by checks, 37. 
 customs in restraint of trade, 67. 
 
 iJEEDS, 
 
 customary covenants in, governed by lex rei sitae, 112. 
 
 usage admissible to explain deeds, 387-389. 
 (For words and phrases in deeds explained by usage. See Words and Phkases.) 
 
 DEFINITIONS. 
 
 definition of customs, 15. 
 
 of general custom, 15. 
 
 of particular customs, 15, 16, 26. 
 
 of usages of trade, 20, 26. 
 
 of custom of a poi'.5on. 26. 
 
 DESCKNT. (See Wills.) 
 
522 INDEX. 
 
 DEVIATION. (See Insurance Law.) 
 
 DICTIONARY, 
 
 admissibility of, in evidence, 102. 
 
 EMPLOYER AND EMPLOYEE. (See Master and Servant.) 
 
 ENTRIES. (See Books ov Account.) 
 
 ESTABLISHED. (See Ancient.) 
 
 EVIDENCE. (See Pkesumption ; Witnesses, and the special titles.) 
 
 EXPRESS COMPANY. (See Common Cabrikrs 
 
 EXTENT, 
 
 usiige of trade which has no limit in extent, void, 35. 
 
 custom cannot affect those between whom there is no privity of contract, 56. 
 
 custom between brewers and tavern-keepers cannot affect distillers, 56. 
 custom cannot affect those ignorant of it, 57, 58. 
 
 custom of bank cannot bind party who does not intend to be brought within its 
 operation, 57. 
 custom of bank does not affect note not payable there, 58. 
 II. & W., fruit-brokers in London, being employed by F. & U., merchants in 
 London, to sell for them, gave them the following contract note, addressed to 
 E. & D. i "We have this day sold for your account to our principal * * * 
 tons of raisins. M. & W., brokers." The principal having accepted part of 
 the raisins, and not having accepted the rest, E. & D. brought an action on the 
 contract against M. & W., and sought to make them personally liable by the 
 custom of the trade. On the trial, in addition to evidence of a custom in the 
 London fruit-trade that if brokers did not give the names of their principals in 
 the contract, they were held personally liable, although they contracted as 
 brokers for a principal, they offered evidence of a similar custom in the London 
 colonial market. Held, that the latter was also admissible, being evidence in a 
 similar trade in the same place, and as tending to corroborate the evidence as 
 to the existence of such a custom in the fruit trade. Fleet v. Murion, 90. 
 evidence of customs at different places or in other trades, when admissible 105- 
 107. 
 custom of one manor not admissible to prove custom of another, 105. 
 rule different as to usages of trade in England, 105, 106. 
 American rule less liberal, 106, 107. 
 where custom in one place is proved, evidence that it is different in another 
 inadmissible, 107. 
 
 FACTORS. (See Principal and Aqknt.) 
 FENCES, 
 
 statute as to partition fences ; contrary usage void, 460. 
 PISHING. (See KiVER.) 
 FIXTURES. {See Landlord and Tenant.) 
 FRAUD, 
 
 on question of fraud, usage relevant, 830. 
 but custom cannot establish a fraud, 830. 
 
INDKX. 623 
 
 GAMINU-. (See Sporting Usagjes.) 
 
 GENERAL, 
 
 a common-law custom must be general, 39. 
 
 illustrations, 40. 
 the rule of law as to importing into the terms of a tenancy the custom of the 
 country does not admit of evidence of the usage of a p irticular estate on the 
 property of a particular individual, however extensive it may be. Womersley 
 V. Dally, 5. 
 how fur generality required of a particular custom, 40. 
 
 contradiction to say that a particular custom must be general, 40. 
 generality only material as affecting the question of knowledge of the cus- 
 tom, 40. 
 usage may be "general," though confined to a particular city, town, or vil- 
 lage, 41. 
 instances of inadmissible usages under this heiiJ, 41. 
 usage of a single house, 41. 
 of a single mill, 41. 
 . of only one person, 41. 
 of one railroad company, 41. 
 custom in New Orleans, Cincinnati, and Louisville does not prove a 
 
 general custom on the Mississippi Rivur and its tributaries, 41. 
 practice, to amount to a usage, must be the mode, 41. 
 payment of loss by bank in an unusual case, 41. 
 particular instances of dealings in one or two banks, 41. 
 a particular banking-usage must apply to a place, not to a, particular 
 
 bank, 41. 
 usage of municipal corporations must be general among like towns and 
 
 cities, and not local in one place, 41. 
 a few instances of transshipping goods or stopping at a particular port 
 
 does not establish a usage in the shipping trade, 42. 
 boat putting into port sometimes, but not usually, 42. 
 usage of coal-miners not sufBciently proved by a miner who only worked 
 
 in one shaft, 43. 
 proof that a practice is " very common " in a trade does not establish a 
 
 usage, 43. 
 that it was " very unusual " to do a thing does not show a usage not to 
 do so, 43. 
 instances of usages sustained as sufficiently general, 44. 
 custom prevailing in three different establishments, 44. 
 custom of river as to booming logs, 44. 
 custom as to negotiable paper in Iowa, 44. 
 custom of ship-broker, 44. 
 
 GENERAL CUSTOMS, 
 defined, 15. 
 
 are the common law, 16. 
 founded on act of Parliament, 16. 
 
 GEOGRAPHY. (See Places.) 
 
 HABIT, (See also Accommodation Usage, or Habit.) 
 usage of only one person, effect of, 41. 
 
524 INDEX. 
 
 HABIT — Continued. 
 
 the habit of an individual, 78-82. 
 
 .examples of this kind of evidence received, 78. 
 custom of party as to giving receipts, 79. 
 as tn giving notice of additional insurance, 79. 
 as to signing will, 79. 
 custom of attorney in giving directions as to writs, "9. 
 
 habits of other attorneys in same place irrelev.uit. 80. 
 custom of railroad agents to mark cotton received, 80. 
 custom of board of trade, 80. 
 custom of bank clerk to settle books daily, 80. 
 of owner of mill to give receipt for grain, 80. 
 of party to accept drafts only in writing, 81. 
 of bank clerk to personally notify parties, 81. 
 of notary as to mailing notice, 81. 
 
 party's practice may explain abbreviations and symbols in books, 81, 
 examples of this proof rejected, 81, 82. 
 
 custom of insurance agent to enter policy in book, 81. 
 of factor to enter sales, 81. 
 
 habit of justice of the peace to read over bills of sale to signers, 81. 
 to deliver executions to officer making attachment, 81. 
 custom does not obligate mode of executing contract, 82. 
 
 oral insurance contract good, though usually in writing, 82. 
 'entries made in usual course of business, 82-84. 
 evidence after party's death, 82. 
 
 if they are party's books of account kept in regular course, 8S. 
 shingle containing minutes of lumber hewed admissible, 83. 
 ' also notched stick and wooden tallies, 83. 
 memoranda of sawyers on boards, 83. 
 scraps of paper, 84. 
 tabular forms, 84. 
 single sale, though of more than one article, does not constitute a course of 
 business, 84. 
 habit of testator of using particular word in particular sense, 351, 398-400, 
 
 HOMICIDE, 
 
 custom cannot excuse, 62. 
 
 HOKSE-RACE. (See SpoRTiira Usages.) 
 
 INDULGENCE. {See Accommodation Usage., 
 INNKEEPERS. 
 
 custom of hotel keepers as to deposit of money by guests in safe, 34, 46. 
 express agreement between innkeeper and guest cannot be altered by custom, 453. 
 INSURANCE LAW, 
 
 particular customs not known to insured, inadmissible, 55. 
 
 custom to charge extra premiums on unoccupied dwelling-houses, 55. 
 usage to require, as proof of death, certificate from attending physician of 
 
 deceased, 55. 
 usage for insurer to receive notico of increase of risk, and to have option of 
 
 continuing or annulling policy, 55. 
 custom that term "carpenter?," in policy, referred to the employment of 
 carpenters in iKkling to buildings insured, -55. 
 
INDEX. 525 
 
 mSURANCE IjA.W — Continued. 
 
 custom to reject applications on buildings previously fired bj^an incendiary, 
 
 55. 
 custom to require notice of additional insurance to be given, 55. 
 
 this case open to criticism on other grounds, 56, note, 
 custom not to deliver policies to agents unless insured was at the time in 
 
 good health, 55. 
 custom to require applications for additional insurance to be in writing, 55. 
 usage to construe "standing detached" as meaning that subject shall be at 
 
 least twenty-five feet from external exposure, 55. 
 usage to require preliminary survey of goods damaged by port-wardens, 55. 
 usage as to mode of adjusting losses, 56. 
 particular customs not known to insurer also inadmissible, 56. 
 custom for watchman at factory to leave on Sundays, 56. 
 custom not to regard the Straits of Northumberland as within the Gulf of 
 St. Lawrence, 56. 
 unreasonable usages of insurance companies, 73. 
 
 to require preliminary survey of damaged goods by port-wardens, 73. 
 to pay only two-thirds of gross freight on a total loss, 73. 
 oral insurance contract good, though usually in writing, 82. 
 
 insurance company liable on policy executed in mode difTerent from that 
 
 prescribed by charter, 245. 
 on agreement signed by agent, 245, 246. 
 on parol contract, 245. 
 and on bill of exchange, 245. 
 usages in the law of insurance, 148, 248-287. 
 Mr. Justice Buller'.s opinion, 248. 
 
 similar remarks as to the power of usage made in other cases, 248. 
 these Views criticised, 248, 249. 
 the correct rule stated, 249. 
 Mr. Abnould's four rules, 250. 
 usages in marine insurance, 250. 
 
 every general usage prima faoie part of the policy. 241 
 commencement and end of risk, 252. 
 arrival and delivery, 253. 
 
 evidence that it is the usage of the carrying trade for one boat on a voy- 
 age to stop and aid another boat in distress is competent to show that 
 such is not a deviation. Walsh v. Homer, 160. 
 deviation by boat leaving course, waived by usage, 254.^ 
 
 except where policy contains positive directions, 254. 
 doctrine of general average as affected by usage, 255. 
 policy covers such goods as are considered covered by usage, 256. 
 apportionment of premium not allowed where risk is entire, 256. 
 this rule different by usage, 256. 
 inconsistent rulings, 25G, 257. 
 other instances of usages of marine insurance, 257. 
 usiiges in fire insurance, 258. 
 
 contracts include all usages of the particular business insured, 268. 
 in a policy of fire insurance upon printing and book materials in a 
 building, privileged for a printing-office and bindery, there was a con- 
 dition exempting the insurer from liability for any loss occasioned by 
 camphene. The property insured was destroyed by a fire caused by 
 
526 iNJ>KX. 
 
 IN SURANCE LAW — Continued. 
 
 a workman accidentally dropping a lighted paper into an open jar of 
 camphene, which was kept in the building for use in the business. In 
 an action on the policy, the jury having found that when the policy 
 was effected it was the general and established custom among printers 
 to use camphene in the printing of books, and that its use was not 
 only advantageous, but necessary : held, that the exemption extended 
 only to a loss occasioned by the use of camphene for purposes other 
 < ^ than that of printing. Harper v. City Ins. Co. 148. 
 
 customary incidents of business insured — illustrations, 258-260. 
 what is an increase of risk may be determined by usage, 262. 
 
 does not include usual and necessary repairs on building, 262. 
 changes in adjoining premises, 263. 
 
 amount of loss — usage as to stock kept, admissible to determine, 264. 
 payment of losses by mutual companies, usages as to, 264. 
 reinsurance : contract of, not affected by usage, 265. 
 usages in life insurance, 265. 
 
 usage to consider insurance made, though premium not paid, 265. 
 usage of company to allow days of grace for payment of premium, 205. 
 inconsistent rulings, 266. 
 
 such usage not admissible in contradiction of polic}-, 266, 267. 
 defence of drunkenness not sustainable by reputation, 267. 
 usage to require proof of death by family physician not admissible if 
 
 unknown to insured, 267. 
 not competent to show that person addicted to spirits is not regarded as 
 
 an insurable subject, 267. 
 usage admissible to explain words in policies of insurance, 401. 
 extent of the rule, 401. 
 words explained by usage in marine policies, 401-405. 
 
 (See aiso Words and Phrasbs.) 
 geographical terms explained by usage, 403^05, 
 illustrations, 404, 405. 
 
 (See aZso Words and Phrases.) 
 words explained by usage in fire-policies, 405-408. 
 (See also Words and Phrases.) 
 contracts of insurance cannot be contradicted by usage, 438-441. 
 
 in an action of a policy of insurance on a ship, her tackle, apparel, boat, 
 and other furniture, evidence of a usage that boats slung on the out- 
 side of the ship, on the quarter, are not protected, is inadmissible, as 
 contradicting the express terms of the contract. Blackett v. Royal 
 Exchange Assur. Co. 413. 
 insurance — usages against legal rules admitted, 469. 
 usages against legal rules rejected, 470. 
 
 INTEREST, - • 
 
 custom of charging, different with different city officers, invalid, 37. 
 custom of merchants to charge interest, 52. 
 
 must be known to customer to bind him, 52. 
 but knowledge may be implied from previous dealings, 52. 
 where there is a general usage in any particular trade or business to charge and 
 allow interest, parties having knowledge of the usage are deemed to contract 
 with reference to it. Esterly v. Cole, 198. 
 
INDEX. 02l 
 
 INTEREST — Cmiinued. 
 
 although the law does not in general give interest upon an open running account 
 for goods sold, yet an agreement to pay interest may be inferred from a uniform 
 practice of the creditor to charge interest, Icnown to the customer. Ibid. 
 other instances, 316, 318. 
 statutes prohibiting usury — contrary usages void, 45S. 
 
 INTERPRETATION. (See Construction; Words and Fhrashs.) 
 
 IRELAND, 
 
 landlord and tenant customs in, 18. 
 
 JUDICIAL NOTICE, 
 
 general customs are judicially noticed, 96. 
 
 usage of mercantile establishments to furnish each others' customers with 
 goods, 96. 
 
 to fish in private ponds, 96. 
 
 of church to keep a record, 96. 
 
 customs of brokers, 96. 
 
 custom of banking hours, 96. 
 
 other banking customs judicially noticed, 96. 
 particular usages and customs must be proved, 96. 
 
 necessary by parol evidence, 96. 
 
 particular customs of banks cannot be judioiallj' noticed, 96. 
 
 nor custom of city as to grading streets, 97. 
 
 usages of another State, 97. 
 
 JUDICIAL OPINION OP USAGE AND CUSTOM, 
 
 dislike of the judges to extend the office of a usage, 20-24. 
 
 Lord Eldon's opinion that they had been extended lar enough, 21. 
 
 similar views in Hutton v. Warren, in the case of instruments under seal, 21. 
 
 Lord Dbnman's expression on the subject in Freeman v. Loder, 21. 
 
 similar views expressed in America by Mr. Justice Story, in The Jieeside, 21. 
 
 and in a subsequent case by the same judge, 21. 
 
 Chief Justice Tilohman's lament over their introduction into the law, 22. 
 
 Chief Justice Gibson's dislike to their admission, 22. 
 
 similar opinion of Pkrkins, J., in Cox v. O'RUey, 22. 
 
 of Stuart, J., in another Indiana case, 22. 
 
 of CooLET, C. J., in Strang v. Orand Trunk R. Co. 22. 
 
 of Senator Wright, in Dykers v. Allen, 22. 
 
 of Mr. Justice Miller, in Partridge v. Insurance Co. 23. 
 
 of Stonb, J., in Barlow v. Lambert, 23. 
 difl'erent views entertaineS by other judges, 23-25. 
 
 the opinion of the Supreme Court of Vermont: "Usage and custom will 
 accomplish everything except impossibilities," 23. 
 
 their introduction favored by Hubbard, J., of the Supreme Judicial Court 
 of Massachusetts, 23. 
 
 views of Ranney, J., on the evils which would result from their rejection. 
 
 23. 
 the difficulty of the subject pointed out by Dewey, J., in Clark v. Baker, 24. 
 the universality of their influence shown by Baldwin, J., m Wilcocks -'. 
 
 Phillips, 24. 
 
528 INDEX. 
 
 JUDICIAL OPINION OF USAGE AND CVSTOU— Continued. 
 
 Thompson, C. J., of Pennsylvania, favors their admission into the law, 24. 
 Lord Campbell's views in Humfrey v. Dale, 25. 
 liberality shown in England of late years in admitting them, 25. 
 the American oases still contradictory and confjising, 25. 
 admissibility of usage to affect written contracts, 365. 
 
 views of the text-writers and judges, 366. 
 usages contrary to legal rules valid, 465. 
 
 contradictory expressions of some judges, 465, 460. 
 
 JUPvY, (See oZso Lavt AND Pact.) 
 
 custom must be given in evidence, 97. 
 
 cannot be found by jury from their own knowledge, 97. 
 
 JUSTICE OP THE PEACE. {.See Offices and Officers.) 
 
 KNOWLEDaE, 
 
 a person entering into a contract is not bound by the usage of a particular busi. 
 
 ness unless it is so general as to furnish a presumption of knowledge, or it is 
 
 proved that he was acquainted with it. It was a rule in a cotton-factory in A.. 
 
 and some neighboring factories, that no person employed should leave their 
 
 service without giving a fortnight's notice of his intention to quit. A weaver 
 
 who did not know of this rule worked in the factory without any agreement as 
 
 to the terms of service, but was paid by the yard for the work which he turned 
 
 out. He left the factory without giving any previous notice. Held, that the 
 
 rule was not binding on him, and that he, therefore, was not liable to an action 
 
 for damages by the owner of the factory for thus leaving. Stevens v. Reeves, 6. 
 
 general commercial usage presumed to be known to all, 45. 
 
 but not so as to particular usages, 45. 
 
 knowledge of particular usages must be shown by express proof, or by evidence 
 
 of their generality and notoriety, 45. 
 custom prevalent between owners and tenants of particular estate not presumed 
 
 to be known to tenant, 45. 
 piirticular usages of insurance trade not presumed to be known to dealers, 45. 
 so also of the us iges of carriers, 45. 
 
 usagps not known to parties not binding — other instances, 45. 
 usage of auctioneers as to fees for services, 45. 
 of factors as to disposition of funds of principals, 45. 
 of merchants as to commissions allowed to agents, 46. 
 of cabinet-makers as to employment of workmen, 46. 
 of brokers as to indorsement of checks, 46. 
 of lessor of mine, 46. 
 
 of livery-stable keepers to have a lien on horses boarded, 46. 
 of publishers as to authors' copyright, 46. 
 of printing establishments as to sale of good-will, 46. 
 of hotel-keepers as to deposit of money of guests, 46. 
 usages of the Stock Exchange, 47-50. 
 
 person dealing in, or employing broker to deal in, Stock Exchange presumed 
 to agree to its usages, 47. 
 illustrations in the English decision', 47-49. 
 persons having only occasional dealiiij;-. with brokers not presumed to know 
 their usages, 49. 
 
 usngo of brokers as to " straddle " contracts, 49, 50. 
 
INDEX. 52!) 
 
 KNOWLEDGE— Cont'nued. 
 
 usage as to charges for telegrams, 50. 
 customs of servants of corporation?. 50-52. 
 
 usage of servants of corporation not known to officers not binding on it, 50. 
 but their knowledge may be implied from the notoriety of the usage, 50. 
 
 custom of conductors on railroads to pay out small bank-notes, in viola- 
 tion of statute, 61. 
 custom of merchants to charge interest, 52. 
 
 must be known to customer, to bind him, 52. 
 but knowledge may be implied from previous dealings, 52. 
 customs of banks, 53. 
 
 cases which hold that in order to affect a person with the usage of a particu- 
 lar bank he must be shown to have known it, criticised, 53. 
 long-established usages of banks binding on customers, whether known to 
 them or not, 53. 
 customs of particular trades or professions, 53. 
 
 all trades have their usages, which are presumably part of every contract 
 
 made with reference thereto, 53. 
 not material that party had eapress notice of them in following cases, 53. 
 custom of veterinary surgeons to charge for attendance as well as medi- 
 cines, 53. 
 custom among dry-goods jobbers not to dismiss clerk until end of 
 
 season, 54. 
 custom of glass-ware manufacturers to allow agents commission on 
 
 goods ordered directly through manufacturer, 54. 
 customer of employers requiring of servants notice of intention to leave, 
 
 must be known to latter, 54. 
 not sufficient that printed notice was placed in employee's hands, unless 
 
 he could read, 54. 
 if servant has no notice at time he commences work, subsequent notice 
 does not affect him, 54. 
 distinction should be made between local and general customs of this 
 character, 54. 
 latter may be presumed to be known to servant or employer, 54. 
 customs in insurance, law, 55, 56. 
 
 particular customs not known to insured, inadmissible, 55. 
 
 custom to charge extra premiums on unoccupied dwelling-houses, 55. 
 usage to require, as proof of death, certificate from attending physician 
 
 of deceased, 55. 
 usage for insurer to receive notice of increase of risk, and to have option 
 
 of continuing or annulling policy, 55. 
 custom that term "carpenters," in policy, referred to the employment 
 
 of carpenters in adding to buildings insured, 55. 
 custom to reject applications on buildings previously fired by an in- 
 cendiary, 55. 
 custom to require notice of additional insurance to be given, 55. 
 
 this case open to criticism on other grounds, 55, note, 
 custom not to deliver policies to agents unless insured was at the time in 
 
 good health, 55. 
 custom to require applications for additional insurance to be in writing, 
 
 55. ' 
 
 34 
 
530 INDEX. 
 
 KNO WL KDGE — Continued. 
 
 usage to construe "standing detached" as meaning that subject shall 
 
 be at least twenty-flve feet from external exposure, 55. 
 usage to require preliminary survey of goods damaged by port-wardens, 
 
 55. 
 usage as to mode of adjusting losses, 56. 
 particular customs not Icnown to insurer also inadmissible, 56. 
 custom for watchman at factory to leave on Sundays, 56. 
 custom not to regard the Straits of Northumberland as within the Gulf 
 of St. Lawrence, 56. 
 knowledge a' custom, when not presumed, 56. 
 
 custom cannot affect those between whom there is no privity of contract, 56. 
 custom between brewers and tavern-keepers cannot affect distillers, 56. 
 custom cannot affect those ignorant of it, 57, 58. 
 
 custom of bank cannot bind party who does not intend to be brought within 
 its operation, 57. 
 custom of bank does not affect note not payable there, 58. 
 one instance of a practice will not show a usage, 58. 
 but may show knowledge, 58. 
 
 LANDLORD AND TENANT, 
 
 customs of, in Ireland, 18. 
 
 custom fbr poor and indigent householdei-s to cut and carry away rotten boughs 
 and branches in a chase, 31. 
 
 custom to pay sometimes two pence and sometimes three pence in lieu of tithes, 
 31. 
 
 custom for tenants of collieries to throw earth, stone, coals, etc., near to certain 
 coal-pits, 31. 
 
 custom to dig turf for making- or repairing grass-plots as occasion requires, 31. 
 
 custom for occapiers of brick-kilns to carry away as much clay as was at any 
 time required by them to mak?. bricks, 32. 
 
 the rule of law as to importing into the terms of a tenancy the custom of the 
 country does not admit of evidence of the usage of a particular estate on the 
 property of a particular individual, however extensive it mav be. Womersley 
 v. Dally, 5, 45. 
 
 to cut rushes on lord's land, 65. 
 
 custom for lord of manor to have toll on goods landed on his wharf, 65. 
 
 to dig for clay to make bricks on lord's land. 65. 
 
 to grind wheat at mill of lord of manor, 66. 
 
 to grind corn in their own houses and pay toll, 66. 
 
 to receive toll on all corn, 66. 
 
 custom that commoner cannot turn in his cattle till after lord, 67. 
 
 that lord shall have a fine for every pound breach, 67. 
 
 that outgoing tenant of farm shall look exclusively to incoming tenant for com- 
 pensation for seeds, 77. 
 customs between landlord and tenant, 267-276. 
 
 relation of landlord and tenant implies agreement to act according to 
 
 custom of country, 267, 268. 
 usage may show on what property and to what extent rent is collectable, 
 267. 
 
 at common law, tenant for years not entitled to the waygoing crop, 268. 
 a custom that a tenant, whether of parol or deed, shall have the 
 
INDEX. 531 
 
 LANDLORD AND TSN \^T — Continued. 
 
 waygoing crop after the expiration of his term is good. Wiggles- 
 worth V. Dallison, 169. 
 
 this custom recognized in America, 268. 
 except in Virginia and Canada, 269. 
 other customs between landlord and tenant, 269, 270. 
 
 custom requiring lessor to clean leased house hefore lessee enters, 
 270. 
 
 for proprietors of common stairway to use walls for signs, 270. 
 for adjoining owners to pay expense of partition fences, 270. 
 or common walls, 270. 
 
 payment of expense of conveyances regulated by custom, 270. 
 customs as to term of tenancy, 270. 
 explaining terms of lease, 271. 
 what are fixtures determined by custom, 271, 272. 
 
 except where parties have expressly contracted, 272, 
 customs not admissible to contradict lease, 272. 
 when lease not inconsistent with custom, 273-276. 
 in a lease of a rabbit-warren, the lessee covenanted that at the expiration of the 
 term he would leav« on the warren ten thousand rabbits, the lessor paying for 
 them £69 per thousand. In an action by the lessee against the lessor for refus- 
 ing to pay for the rabbits left at the end of the term : held, that parol evidence 
 was admissible to show that by the custom of the countrj' where the lease was 
 made, the word "thousand," as applied to rabbits, denoted twelve hundred. 
 Smith V. Wilson, 335. 
 contract for time certain cannot be evaded by custom, 441. 
 tenant agreeing to give landlord waygoing crop cannot claim it by custom, 441. 
 other instances, 441. 
 landlord and tenant — customs against law admitted, 470. 
 
 LANGUAGE, 
 
 analogy between customs and, 17-19. 
 
 LAW AND PACT, 
 
 inquiry as to mode of business not a question of law, 103. 
 whether usage is established is for jury, 104. 
 whether it is binding, for the court, 104. 
 reasonableness of usage, for court, 104. 
 in cases of written instruments, 105. 
 
 LEGAL RULES, 
 
 customs against rules or maxims of common law not bad, 64. 
 
 as gavelkind and borough-English, which are contrary to the law of descent, 
 
 64. 
 or custom of Kent, which is contrary to the law of escheats, 64. 
 but customs contrary to legal rules of public policy are bad, 64. 
 common-law customs not inadmissible because in conflict with legal rules, 465. 
 gavelkind and borough-English examples of this, 465. 
 usages contrary to legal rules valid, 465. 
 
 contradictory expressions of some judges, 465, 466. 
 banks and banking — usages against legal rules admitted, 467. 
 
 usages against legal rules rejected, 467, 468. 
 common carriers — usages against legal rules admitted, 468. 
 
532 INDEX. 
 
 LEGAL BVLVjS — Oontinued. 
 
 usages against legal rules rejected, 469. 
 corporations — usages against legal rules admitted, 469. 
 insurance — usages against legal rules admitted, 469. 
 usages against legal rules rejected, 470. 
 '. landlord and tenant — customs against law admitted, 470. 
 contracts for personal services — customs against law admitted, 471. 
 
 customs against law rejected, 471. 
 partnership — customs against law admitted, 471. 
 principal and agent — usages against legal rules admitted, 471. 
 usages against legal rules rejected, 471. 
 
 it is a rule of law that an agent cannot act as such for both vendor 
 and purchaser, and receive payment for his services from both. 
 Therefore, a custom among brokers in the city of Baltimore that 
 in exchange of real estate they are entitled to a commission of 
 two and a half per cent from each party on the value of the 
 property exchanged, is invalid. Raisin v. Clark, 431. 
 vendor and purchaser — usages against legal rules admitted, 472. 
 
 usages against legal rules rejected, 472. 
 miscellaneous usages admitted or rejected because contrary to rules of law 
 
 472. 
 necessity for reviewing the contradictory oases, 473. 
 the facts and opinions of the judges in these cases, 474-484. 
 the above cases examined, 484, 485. 
 
 the true meaning of the rule that a usage must not conflict with the law, 486. 
 LEGISLATURE, 
 
 the originator of common-law customs, 16. 
 
 custom not good because it might have been enacted by Legislature, 16. 
 as if it be unreasonable, 16. 
 
 LIEN. (See Common Carkiers ; OoRPORATioifs ; Livery-stable Keeper.) 
 LIVERY-STABLE KEEPER, 
 
 usage of, to have lien on horses boarded, 46. 
 
 MARITIME CONTRACTS. (See Common Carriers.) 
 
 MASTER AND SERVANT, (See also Payment; Principal and Agent; Me- 
 chanics AND Workmen.) 
 
 custom among wholesale merchants to allow salesmen for time lost by sickness 
 33. ' 
 
 habit to call on workman to rectify careless job, 38. 
 
 practice of mills to give certificate of honorable discharge to operative, 38. 
 
 act of railroad in paying for medical attendance of employee does not make a 
 custom, 38. 
 
 it was a rule in a cotton-factory in A., and some neighboring factories, that no 
 person employed should leave their service without giving a fortnight's notice 
 of his intention to quit. A weaver who did not know of this rule worked in the 
 factory without any agreement as to the terms of service, but was paid by the 
 yard for the work which he turned out. He left the factory without giving any 
 previous notice. Held, that the rule was not binding on him, and that he 
 therefore, was not liable to an action for damages by the owner of the factory 
 for thus leaving. Stevena v. Reeves, 6. 
 
INDKX. 533 
 
 MASTER AND SE^yAl^iT— Continued. 
 
 usage of cabinet-makers as to employment of workmen, 46. 
 
 custom among dry-goods jolobers not to dismiss clerk until end of season, 54. 
 
 custom of glass-ware manufacturers to allow agents commission on goods 
 
 ordered directly through manufacturer, 54. 
 custom of employers requiring of servants notice of intention to leave, must 
 
 be known to latter, 54. 
 not sufficient that printed notice was placed in employee's hands, unless he 
 
 could read, 54. 
 if servant has no notice at time he commences work, subsequent notice does 
 not affect him, 54. 
 distinction should be made between local and general customs of this character, 
 54. 
 latter may be presumed to be known to servant or employer, 54. 
 unreasonable usages between master and servant, 12, 73. 
 
 that if female slave, hired by month or week, is confined and delivered of 
 
 child during term, owner should pay certain sum to hirer, 73. 
 among wholesale dealers allowing salesmen pay for time lost by sickness, 
 
 without regard to length, 73. 
 for sawyers to ship lumber intrusted to them, and converted into logs, to 
 
 lumber factors, to be sold by them, 73. ^ 
 
 that person employed to cut staves from another's bolts has right to take to 
 his own use clippings, corner-pieces, and culls, without consent of owner, 
 73. 
 customs between master and servant, employer and employee, 276-279. 
 as to terms and conditions of service, 276. 
 may show length of hiring, 276. 
 
 in an action for wrongfully dismissing the editor of a newspaper, the 
 declaration stated that he was engaged for a year. There was no direct 
 evidence as to the time for which he was engaged. Seld, that he 
 might show that it was customary for editors of newspapers to be en- 
 gaged for a year unless there was an express stipulation to the con- 
 trary. Solcroft V. Barber, 175. 
 usa^e as to notice between printers and proprietors of newspapers, 276. 
 as to term of service of dry goods clerks, 276. 
 
 as to privilege of journeymen to work for themselves certain hours, 277. 
 of business houses to fucnish each other's clerks with goods, 277. 
 as to proper performance of service, 277. 
 
 usage that printer of book cannot print copies for himself, 277. 
 
 that employment of architect to make plans gives hira superintendence 
 
 of building, 277. 
 that literary writer may employ assistants, 277. 
 as to wages and compensation, 278. 
 
 usages as to mode of paying seamen, 278. 
 charges of veterinary surgeons, 278. 
 right of commission merchants to commission, 278. 
 charges of professional men, 278. 
 of printer of books, 278. 
 
 of proprietor of newspaper to charge for advertisement until counter- 
 manded, 278. 
 other cases, 278, 279. 
 
5^4 INDEX. 
 
 .ArASTER AND S'ERV AJUT — Continued. 
 
 contract not wholly performed ; quantum mei-uit may be allowed by usage, 
 
 279. 
 contracts for personal service explainable by usage, 394-398. 
 
 as that servants are entitled to holidays although covenanting to "lose 
 
 no time," 894. 
 or that actress is only entitled to pay during season, though engaged for 
 
 "three years," 394. 
 or that servant is entitled to notice of dismissal where contract is in 
 
 writing, 394-396. 
 whiit is meant by particular description of trade explainable by usage, 
 394, 397. 
 as "cabinet and mahogany door-maker" in agreement to teach that 
 
 trade, 394. 
 to show duties of " salesman," 397. 
 of "lace buyer," 397. 
 
 what is included in "ship carpenter's " work, 397. 
 what is meant by "same ground," 397. 
 what is expected of girl engaged as "danseuse," 397, 398. 
 contracts of hiring, if express, cannot be altered by contradictory customs, 
 441. 
 ■• statutes requiring contracts with seaman to be in writing — contrary usage 
 void, 458. 
 contracts for personal services — customs against law admitted, 471. 
 customs against law rejected, 471. 
 
 MECHANICS AND WORKMEN, (See also Mastkr and Servant.) 
 
 usage of plasterers to charge not only for space covered, but for one-half of sur- 
 face occupied by openings, 73. 
 contracts for labor and materials explained by usage, 390-394. 
 
 a contract for the excavation of lots in a city, so as to make them conform to 
 a certain plan, was silent as to whom should belong the sand or other 
 material taken therefrom. A custom existed, long estiiblished and noto- 
 rious, that it went to the excavator, and not to the owner of the lots. 
 Seld, that evidence of the custom was admissible to explain the contract 
 of the parties. Cooper v. Kane, 339. 
 mode of measuring work estimated by custom, 391, 392. 
 other instances, 393, 394. ' 
 
 {See also Words and Phrases.) 
 A. agreed to make B. a "satisfactory" suit of clothes. A. afterwards delivered 
 the clothes to B., but B. returned them to A. with a notice that they did not 
 fit, and were unsatisfactory. In a suit by A. against B. for the price: held, 
 that evidence that a custom existed among tailors of having garments tried on 
 after they were finished, and then making any alterations that might be neces- 
 sary to make them flt, was inadmissible, because it contradicted the terms of 
 an express contract. Brown v. Foster, 417. 
 other cases, 441-443, 452. 
 
 MINES AND MINING, {See also Landlord and Tenant.) 
 
 usage of coal-miners not sufficiently proved by a miner who only worked in one 
 
 shaft, 43. 
 usage of lessor of mine, 46. 
 to mine coal without leaving pillars to support surface, 77. 
 
INDEX. 535 
 
 MINES AND M.mm(i — Continued. 
 
 of ownei's of mines to dispose of water pumped therefrom, by allowing it to flow 
 
 into adjacent natural watercourse, 77. 
 mining customs contained in book, whole book must be given in evidence, 103. 
 mining agreement explained by usage, 390. 
 meaning of " level " in lease, 390. 
 customs of mining, 390, note. ' 
 
 MORAL, 
 
 a custom must be moral, 58. 
 
 custom giving to lord of manor right of concubinage with tenants' wives on 
 their wedding-nights, immoral, 58. 
 such custom denied in England, 58. 
 in an action by one for the seduction of his daughter, » custom of " bund- 
 ling" — i.e., for persons courting to sleep together — cannot be set up by 
 him to excuse his connivance at the intercourse. Seagar v. Sligerland, 9. 
 custom of "bundling" described by Washington Irving, 59. 
 custom of "bundling" rejected in action for seduction in Pennsylvania in 
 
 1845, p. 59. 
 custom of promisi.uous cohabitation among free and slave blacks, 60. 
 ini'.iioral custom-s in England, 61, note. 
 
 in prosecution for adultery, customs allowing great familiarity between men 
 and women rejected, 61. 
 but in proving adultery by circumstantial evidence, social habits of the 
 parties relevant, 61. ^ 
 
 custom of the charivari, 61, 62. 
 cannot excuse murder, 62. 
 or riot, 62. 
 
 MUNICIPAL CORPORATIONS, 
 
 usaoeof, must b« general among like towns and cities, and not local in one place, 
 
 i\. 
 custom of city as to grading streets, 97. 
 municipal charter and powers as affected by usage, 463. 
 unlawful expenditure of money by municipal corporations not valid by usage, 
 
 464. 
 
 NEGLIGENCE, v 
 
 negligence as affected by custom, 318-829. 
 
 what is diligence, to be judged by the habits of the country, 318, 319. 
 
 carrier must take customary care of property, 820. 
 
 custom for consignee to furnish means for delivery may excuse carrier, 321, 
 
 322. 
 other cases, 322. 
 
 negligence in other bailments may be judged by usage, 323, 324. 
 as affecting the contributory negligence of a servant, 324-328. 
 customs to excuse negligence rejected, 328, 329. 
 statute requiring safety-plugs on steam-boilers, 461. 
 
 contrary custom in manufacturing establishments void. 461. 
 NEGOTIABLE AND ASSIGNABLE PAPER. (-See also Banics and Banking.) 
 
 custom as to, in Iowa, 44. 
 NEWSPAPERS. (-See Poblishbrs and AniHOBS.) 
 
536 INDEX. 
 
 NOTAKY. {See Opwobs and Offickbs.) 
 NOTICE. (See Kno-wledgh.) 
 NUISAKCE, 
 
 evidence of custom on question of, 330. 
 
 OFFICES AND OFFICERS, {See also Corpoeations.) 
 custom of surveyors in making measurements, 35. 
 
 custom of charging interest different witli different city officers invalid, 37. 
 custom to oblige person to take office under penalty, 64. 
 to take part of barley exported, 65. 
 to distrain goods of ship for port dues, 65. 
 unreasonable usages among public officers, 74. 
 
 for flour inspector to take to his own use flour drawn from barrel in process 
 
 of inspection, as perquisite, 74. 
 of government officers to accept bills without consideration, or to pledge 
 
 credit of nation as surety for accommodation of contractor, 74. 
 for holders of settlements and preemptions of land to give one-half to 
 another for surveying and paying expenses for carrying claims to grant, 74. 
 in making surveys for locations of government land granted to settler, to 
 
 include more land than warrant actually called for, 74. 
 custom of notary as to mailing notice, 81. 
 
 habit of justice of the peace to read over bills of sale to signers, 81. 
 to deliver executions to officer making attachment, 81. 
 duty of bank as collecting agent may be delegated to notary by usage, 209. 
 
 conflicting decisions, 209. 
 usages may prescribe officer's duties, powers, and compensation, 333. 
 
 PARTICULAR CUSTOMS, 
 
 particular customs defined, 15, 16. 
 
 confii'med to particular districts by statute, 16. 
 instances of particular customs, 17. 
 gavelkind in Kent, 17. 
 borough-Enalish, 17. 
 customs of manors, 17. 
 customs of London, 17. 
 law of the river, 17. 
 law of the road, 17. 
 PARTNERSHIP, 
 
 customs in the law of partnership, 178, 279-284. 
 
 partner may bind firm by act within Uiual scope of business 279, 280. 
 
 it is the custom on the Alabama River for the proprietors of steamboatt 
 to purchase salt at Mobile, to be carried up the river and sold. Held, 
 that in the absence of a contrary stipulation in a partnership agree- 
 ment made for the purpose of running a steamboat on that river, the 
 firm would be liable for salt purchased by a partner at Mobile for 
 transportation and sale on the boat. Waring v. Grady, 178, 281. 
 usage as to name of firm, 282, 
 common report cannot prove existence of partnership, 282. 
 
 nor dissolution, 282. 
 usage may establish partnership as to third parties, 283. 
 as by issuing joint bills and occupying same store, 284. 
 
INDEX. 537 
 
 PAETNEKSHIP— Continued. 
 
 or advertising or distributing hand-bills in firm name, 284. 
 or marking merchandise, 284. 
 partnership — customs against law admitted, 471. 
 PAYMENT, 
 
 habit of merchants to pay debts by checks, 37. 
 to pay workmen in orders for goods, 38. 
 not to pay wages punctually, 38. 
 to take currency in payment, 38. 
 payment may be made according to usage, 315. 
 illustrations, 316. 
 
 PEACEABLE. (See Acquiescence.) 
 PLACES, 
 
 custom not to regard the Strait of Northumberland as within Gulf of St. Law- 
 rence, 56. 
 
 geographical terms explained by usage, 403-405. 
 
 PLASTERERS. (See Mechanics and Workmen.) 
 
 PLEADING, 
 
 general usages or customs need not be pleaded, 112. 
 
 but aliier as to local customs, 112. 
 
 and those excusing non-performance of legal duties. 112. 
 all requisites of usage must be averred, 112. 
 
 but averment of knowledge unnecessary, when, 112. 
 when usage not sufficiently pleaded, 112. 
 evidence of usage admissible in New York under general denial, 112. 
 
 PLEDGEOR AND PLEDGEE, 
 
 rules of law as to, not affected by contrary custom, 810. 
 
 PRESUMPTION, 
 
 , general commercial usages presumed to be known to all, 45. 
 I but not so as to particular usages, 45. 
 knowledge of particular usuges must be shown by express proof, or by evidence 
 
 of their generality and notoriety, 45. 
 custom prevalent between owners and tenants of particular estate not presumed 
 
 to be known to tenant, 45. 
 particular usages of insurance trade not presumed to be known to dealers, 45. 
 so also of the usages of carriers, 45. 
 all trades have their usages, which are presumably part of evei-y contract made 
 
 with reference thereto, 53. 
 knowledge of custom, when not presumed, 56. 
 
 PRINCIPAL AND AGENT. 
 
 usage among brokers that margins put up to cover advance must be " reason- 
 able," 33. 
 
 custom among commission merchants, on sales for cash, to wait two, three, or 
 four days for the money. 83. 
 
 custom among commission merchants in Indianapolis that flour of a grade not 
 suitable for sale there is forwarded to New York, 33. 
 
 usage of captains of steamboats in giving premium note for insurance, 35. 
 
 usage of factors as to disposition of funds of principals, 45. 
 
538 iiNPJix. 
 
 PRINCIPAL AND AGENT — Continued. 
 
 of merchants as to commissions allowed to agents, '46. 
 of brokers as to indorsement of checks, 46. 
 usages of the Stock Exchange, 47-50. 
 
 person dealing in, or employing brokers to deal In, Stock Exchange pre- 
 sumed to agree to its usages, 47. 
 illustrations in the English decisions, 47-49. 
 persons having only occasional dealings with brokers not presumed to know 
 their usages, 49. 
 usage of brokers as to " straddle " contracts, 49, 50. 
 usage as to charges for telegrams, 60. 
 customs to exempt factors from paying duty on corn, 64. 
 unreasonable usages among principal and agent, 75, 77. 
 
 that one, without authority from owner of lands, may dispose of them on 
 
 ordinary terms, and bind owner, 75. 
 among owners of vessels to accept bills of their masters for supplies fur- 
 nished abroad, 75. 
 that the master of a vessel, as such, may purchase a cargo on account of 
 
 owners without authority, 75. 
 to sell vessels without authority from owners, 75. 
 for broker employed to purchase stock, to buy stock for himself, without 
 
 principal's knowledge, 75. 
 that agent mfty sell property of principal before he is instructed to do so, 75. 
 of agents, in collecting drafts for absent parties, to surrender them to drawees 
 
 at maturity, and take checks upon banks, 75. 
 of brokers of tanned skins to insert in memorandum of sale warranty of 
 
 quality, 76. 
 of warehouse-keepers to have general lien on goods in their hands, 76. 
 that person employed as agent maj' engage in another business, 76. 
 for ship-brokers to receive a commission for introducing buyer to seller, 76. 
 for agent to act for both parties and receive pay from both, 76. 
 for insurance agent to receive commission on renewal premiums after ter- 
 mination of his engagement, 76. 
 of wharfingers to deliver goods without responsibility, 77. 
 agency must be executed in accordance with usage, 284, 285. 
 authority of agent governed by usage, 286, 287. 
 
 T., a factor, having goods consigned to him by G., sold them on three 
 months' credit, taking in payment the purchaser's promissory note to 
 himself, but the purchaser, before the maturity of the note, became bank- 
 rupt. In an action by G. against T. for the value of the goods sold: held, 
 that evidence that he had acted according to the custom of the place was 
 admissible, and would discharge him from liability. Goodenow v. Tyler, 
 
 180. 
 
 other illustrations, 286, 287. 
 usnges of the Stock Exchange, 287. 
 agent's authority cannot be delegated, 288. 
 
 unless authorized by custom, 289. 
 factor has no power to sell on credit, 289, 290. 
 
 this rule changed by usage, 290. 
 factor has no power to pledge goods, 290. 
 but may by usage, 290. 
 
 'conflicting decisions, 290. 
 
INDEX. 
 
 539 
 
 PBIISCIPAL AND AGENT — ConWnMerf. 
 
 where usage requires, agent must insure goods, 291. 
 payment to agent as affected by usage, 292. 
 
 set-off, 292, 293. 
 usage may settle agent's compensation, 293. 
 
 illustrations, 294. 
 profits made by agent belong to principal, 294. 
 
 inconsistent usage void, 294. 
 agent cannot act for vendor and vendee, 294. 
 inconsistent usages void, 295. 
 other cases, 296, 297. 
 usage cannot excuse disregard of instructions, 297. 
 
 illustrations of this principle, 298-300. 
 agent not personally bound on contract made for principal, 300. 
 
 but may he by usage, 301. 
 agent contracting in his own name is personally liable, 302. 
 
 inconsistent usage void, 303. 
 usage to add incidents to contracts of principal or agent, 382-386. 
 
 defendants, brokers, being employed by S. to purchase oil, signed a note as 
 follows: "Sold this day for Messrs. T.," plaintiff 's brokers, "to our prin- 
 cipals, ten tons of linseed oil," etc., "quarter per cent brokerage to" 
 defendants. This note defendants delivered to Messrs. T. . Defendants did 
 not disclose the name of their principal, S., who became insolvent and did 
 not accept the oil. Plaintiff then sued defendant for not accepting the 
 oil, laying the sale as by himself to defendants. Defendants denied the 
 contract. On the trial, plaintiff proved a custom in the trade that when a 
 broker purchased without disclosing the name of his principal, he was 
 liable to be looked to as purchaser. Held, that evidence of the custom 
 was admissible, as not contradicting the written instrument, but explaining 
 its terms or adding a tacitly implied incident, and that the action lay. 
 Humfrey v. Dale, 342. 
 other oa.ses, 382-386. 
 express contracts between, cannot be contradicted by usage, 444, 445. 
 principal and agent — usages against legal rules admitted, 471. 
 usages against legal rules rejected, 471. 
 
 it is a rule of law that an agent cannot act as such for both vendor and 
 purchaser, and receive payment for his services from both. There- 
 fore, a custom among brokers in the city of Baltimore that in ex- 
 changes of real estate they are entitled to a commission of two and 
 a half per cent from each party on the value of the property ex- 
 changed, is invalid. Raisin v. Clark, 431. 
 
 PROOF OP USAGE, (See also Witnesses.) 
 usages probable by parol, 102. 
 of land oflBce, by published decisions, 102. 
 reported cases of usage, admissible in subsequent case, 102. 
 
 unless its decision was by agreement of parties, 103. 
 decisions of State courts evidence in Federal courts, 103. 
 mining customs ; whole book must be put in, 103. 
 order of proof, 103. 
 
 object and pertinency of proof must be shown, 103. 
 
 proof of notice may be reserved, when, 103. 
 
540 INDEX. 
 
 PROOF OF VSAd^ — Continued. 
 proper questions, 103. 
 
 inquiry as to the mode of business not a question of law, 103. 
 quantum of evidence, 104. 
 
 witnesses need not all agree, 104. 
 contradictory evidence, 104. 
 newly discovered evidence, 104. 
 
 PUBLISHERS AND AUTHORS, 
 
 usage of publishers as to authors' copyright, 46. 
 
 of printing establishments as to sale of good-will, 46. 
 
 of publishers of newspapers to insert advertisements after object of advertise- 
 ment has ceased, 77. 
 
 notices published by usage in newspapers, 248. 
 
 in an action for wrongfully dismissing the editor of a newspaper, the declaration 
 stated that he was engaged for a year. There was no direct evidence as to the 
 time for which he was engaged. Held, that he might show that it was cus- 
 tomary for editors of newspapers to be engaged for a year, unless there was an 
 express stipulation to the contrary. Halcroft v. Barber, 175. 
 
 usage as to notice between printers and proprietors of newspapers, 276. 
 
 usage that printer of boolc cannot print copies for himself, 277. 
 
 that literary writer may employ assistants, 277. 
 
 of printers of books, 278. 
 
 of proprietor of newspaper to charge for advertisement until countermanded, 278. 
 
 RAILROAD COMPANY. {See Common Carriers.) 
 
 REASONABLENESS, 
 
 a custom or usage of trade must be reasonable, and it is not so if it is such as 
 honest and right-minded men would deem unfair and unrighteous. So held 
 of a usage of undertakers to charge the original cost ot articles used at any 
 funeral, although they might be used at other funerals. Faxon v. Courtney, 11. 
 usage in strawberry business to put all big strawberries at top of box 
 unreasonable, 11. 
 a custom of » particular port that seamen's advance wages due under the sliip- 
 ping-articles shall be paid to the shipping-agent, to be paid by him to the 
 boarding-house keeper bringing the seamen, for their benefit, is unreasonable, 
 and does not bind the seamen, although known to them at the time of signing 
 the articles. Metcalf v. Weld, 12. 
 what is meant by " unreasonable," 63. 
 custom good if reason cannot be given against it, 64. 
 customs against rules or maxims of common law not bad, 64. 
 
 as gravelkind and borough-English, which are contrary to the law of descent, 
 
 64. 
 or custom of Kent, which is contrary to the law of escheats, 64. 
 but customs contrary to legal rules or public policy are bad, 64. 
 customs beneficial to the public good, though injurious to some, 64, 65. 
 as custom to pull down houses to prevent spread of fire, 64. 
 to turn plow on another's headland, 64. 
 to destroy corrupt victuals exposed for sale, 64. 
 to oblige persons to take ot^ce under penalty, 64. 
 to exempt factors from paying duty on corn, 64. 
 to dig gravel on adjacent land to repair way, 64. 
 
INDEX. 541 
 
 REASONABLENESS — Continued. 
 
 to have a watering-place in adjacent land, 64. 
 
 to dig for ballast, 64. 
 
 to dry nets on another's land, 64. 
 
 to cut rushes on lord's land, 64. 
 
 to distrain goods of ship for port dues, 65. 
 
 for lord of manor to have toll on all goods landed on wharf which he kept 
 
 in repair, 65. 
 to take part of barley exported, 65. 
 to enter on close for horse-racing, 65. 
 to dig for clay to make bricks on lord's land, 65. 
 customs not unreasonable if simply inconvenient, 65-67. 
 
 custom for all inhabitants to play at games in a particular close, 65. 
 to dry nets on land adjacent to the sea, 66. 
 to grind wheat at mill of lord of manor, 66. 
 to grind corn in their own houses and pay toll, 66. 
 to receive toll on all corn, 66. 
 for victuallers to erect booths on common, 66. 
 customs injurious to public bad, though beneficial to some, 67. 
 
 custom that commoner cannot turn in his cattle till after lord, 67. 
 that lord shall have a fine for every pound breach, 67. 
 customs in restraint of trade, 67. 
 to go through a particular house, 67. 
 to train horses beyond limits of parish, 67. 
 existence of unreasonable modern usage doubted, 67, 68. 
 
 by Thompson, C. J., in McMasters v. Pennsylvania B. Co. 67. 
 by Chbtes, .J., in South Carolina, 67. 
 usaa;es prima facie are reasonable, 68. 
 the test of their reasonableness, 68. 
 courts will reject unreasonable usages, 68. 
 
 unless parties have actually incorporated them in their contracts, 68, 69. 
 unreasonable usages between vendor and purchaser, 69, 70. 
 
 custom authorizing, on contract for goods of specified character, delivery 
 
 of different goods, 69. 
 on sale of goods of one mill, delivery of goods of another mill, 69. 
 that sales of particular class of goods are subject to approval of public in- 
 spector, but if there is no such inspector, buyer may rescind purchase at 
 pleasure, 69. 
 that no title passes, upon ordinary sale and delivery, without actual payment 
 
 of consideration within certain number of days, 69. 
 that if note is given for gold-mine, and it proves unproductive, it is given 
 
 up, 69. 
 for merchants to sign receipts presented by cartmen with goods, without 
 
 inquiry on part of receiving-clerk as to their ownership, or place from 
 
 which they were received, 69. 
 of board of trade, on cash sales of produce or provisions, giving buyer 
 
 privilege of having them inspected at his own expense, 69. 
 among dealers in cotton as to warehouse-receipts, 69. 
 that where the vendor of goods receives note of the consignee, without 
 
 indorsement of purchaser, latter is discharged, and maker alone remains 
 
 liable, 69. 
 
542 INDEX. 
 
 REASONABLENESS — Continued. 
 
 among merchants to have their goods sent to their stores by long and cir- 
 cuitous routes, 69. 
 to balance books annually and charge interest on running account, 69. 
 unreasonable usages of banks and bankers, 70. 
 
 to honor occasional overdrafts of customers in good standing, 70. 
 not to rectify mistakes discovered after person leaves bank, 70. 
 custom to require depositor to produce pass-book good, 70. 
 unreasonable usages of common carriers, 71-73. 
 
 for wharfingers to act as agents in accepting, on behalf of consignees, goods 
 
 arriving at wharves, 71. 
 for consignee of a vessel, also owner of cargo, to charge commission on 
 
 freight paid by himself to captain, 71. 
 that an intermediate carrier, who received property subject to charges, may 
 deduct from freight earned by prior carrier value of deficiency between 
 quantity delivered and that stated in bill of lading, and that prior carrier 
 shall not be allowed to show that error occurred in stating amount in bill 
 of lading, 71. 
 that to constitute delivery of goods by carrier by water, receipt must be 
 
 given to the carrier by consignee or agent, 71. 
 that freight paid in advance may not be recovered back, though not earned, 
 
 71. 
 that notice published in three newspapers in city, of time and place of land- 
 ing goods by steamboat, is such a notice as places them at risk of con- 
 signee, 71. 
 among owners of tow-boats that first coming alongside of a ship, on a signal 
 
 for steam, has absolute towing contract, 71. 
 requiring those in legal use of waters as a highway to yield to others who 
 
 are using them for an unlawful purpose, 71. 
 that contract made to furnish and carry coal to a certain port for sale may 
 be thrown up by either party, at his convenience, no damage to be claimed 
 from either, 71. 
 of railroad company requiring claims for damages to be made when goods 
 
 are delivered, or soon after, 72. 
 that before consignee can obtain his wheat from company's bins he must 
 
 sign receipt for quantity, 72. 
 that railroad will not be responsible for contents of cars of which their ser- 
 vants have the keys, 72. 
 that passengers cannot take their baggage to state-rooms, 72. 
 to land goods on banks of river, 72. 
 to deliver cargo at a distance from consignee's wharf, 72. 
 unreasonable usages of insurance companies,. 73. 
 
 to require preliminary survey of damaged goods by port-wardens. 7-3. 
 to pay only two-thirds of gross freight on a total loss, 73. 
 unreasonable usages between master and servant, 73. 
 
 that if female slave, hired by month or week, is confined and delivered of 
 
 child during term, owner should pay certain sum to hirer, 73. 
 among wholesale dealers allowing salesmen pay for time lost by sickness, 
 
 ■without regard to length, 73. 
 for sawyers to ship lumber intrusted to them, and converted into loo-s, to 
 
 lumber factors, to be sold by them, 73. ° 
 
 that person employed to out staves from another's bolts has right to take 
 
INDEX. 543 
 
 REASONABLENESS— Co«i!i»«ea!. 
 
 to his own use clippings, corner-pieces, and culls, without consent of 
 owner, 73. 
 
 of plasterers to charge not only for space covered, but for one-half of sur- 
 face occupied by openings, 73. 
 unreasonable usages among public officers, 74. 
 
 for flour inspector to take to his own use flour drawn from barrel in process 
 of inspection, as perquisite, 74. 
 
 of government ofiicers to accept bills without consideration, or to pledge 
 credit of na'tion as surety for accommodation of contractor, 74. 
 
 for holders of settlements and preemptions of land to give one-half to another 
 for surveying and paying expenses for carrying claims to grant, 74. 
 
 in making surveys for locations of government land granted to settler, to 
 include more land than warrant actually' called for, 74. 
 unreasonable usages between principal and agent, 75, 77. 
 
 that one, without authority from owner of lands, may dispose of them on 
 ordinarj' terms and bind owner, 75. 
 
 among owners of vessels to accept bills of their masters for supplies fur- 
 nished abroad, 75. 
 
 that the master of a vessel, as such, may purchase a cargo on accoujit of 
 owners without authority, 75. 
 
 to sell vessels without authority from owners, 75. 
 
 for broker, employed to purchase stock, to buy stock for himself, without 
 principal's knowledge, 75. 
 
 that agent may sell property of principal before he is instructed to do so, 75. 
 
 of agents, in collecting drafts for absent parties, to surrender them to drawees 
 at maturity, and take checks upon banks, 75. 
 
 of brokers of tanned skins to insert in memorandum of sale warranty of 
 quality, 76. 
 
 of warehouse-keepers to have general lien on goods in their hands, 76. 
 
 that person employed as agent may engage in another business, 76. 
 
 for ship-brokers to receive a commission for introducing buyer to seller, 76. 
 
 for agent to act for both parties and receive pay from both, 76. 
 
 for insurance agent to receive commission on renewal premiums after ter- 
 mination of his engagement, 76. 
 
 of wharfingers to deliver goods without responsibility, 77. 
 miscellaneous unreasonable usages, 77. 
 
 to use and imitate the trade-marks of foreigners with impunity, 77. 
 
 of publishers of newspapers to insert advertisements after object of adver- 
 tisement has ceased, 77. 
 
 to mine coal without leaving pillars to support surface, 77. 
 
 that when persons clear place for seine-fishing, they hold it against world 
 during fishing season, 77. 
 
 of owners of mines to dispose of water pumped therefrom, by allowing it to 
 flow into adjacent natural watercourse, 77. 
 
 that outgoing tenant of farm shall look exclusively to incoming tenant for 
 compensation for seeds, 77. 
 reasonableness of usage a question of law, 104. 
 
 KIVER, 
 
 law of the, 17. 
 
 custom of, as to booming logs, 44. 
 
544 INDKX. 
 
 RIVER — Continued. 
 
 custom that when persons clear place for seine-lishiiig, they hold it during season 
 against all, 77. 
 
 ROAD, 
 
 law of the, 17. 
 
 SALES. (See Vendor and Pueohasbb.) 
 
 SPORTING USAGES, • 
 
 custom that, in agreement for horse-race, "across a country " does not allowriders 
 
 to go through gates, 389. 
 custom of sportsmen that when either party relinquishes deposit, bet is at an 
 
 end, admissible, 390. 
 
 STATUTES, 
 
 every common-law custom supposed to be founded on a forgotten statute, 16. 
 statutes as affected by usages and customs, 453. 
 usages repugnant to statute void, 453. 
 words deflaed by act of Parliament, 454. 
 contrary usages void, 454. 
 
 (See Words and Phrasbs.) 
 where a statute declares that every pound of butter shall weigh sixteen ounces, 
 a custom that every pound of butter sold in a particular town shall weigh 
 eighteen ounces is bad. Noble v. Dureil, 420. 
 statutes prescribing officers' duties not affected by usage, 455. 
 
 illustrations, 455-458. 
 statutes prohibiting usury — contrary usages void, 458. 
 statutes requiring contracts with seamen to be in writing — contrary usage void, 
 
 458. 
 statute prohibiting carrier from limiting common-law liability cannot be altered 
 
 by usage, 459. 
 statute declaring violent and tumultuous acts riot, 460. 
 
 custom of the country void, 460. 
 statute requiring sales of liquor to be for cash, 460. 
 
 custom to sell at thirty days illegal. 460. 
 statute allowing days of grace on note, 460. 
 
 contrarj' usage void, 460. 
 statute requiring assignment by writing, 460. 
 
 custom to assign by delivery void, 460. 
 statutes as to partition fences — contrary custom, 460. 
 statute prohibiting work on Sunday, 460. 
 
 custom of barbers to work on that day void, 460. 
 statutes as to watercourses — contrary custom void, 461. 
 statute requiring safety-plugs on steam-boilers, 461. 
 
 contrary custom in manufacturing establishments void, 461. 
 statutory exemptions cannot be waived by usage, 462. 
 statutes may be construed by usage, 462-465. 
 
 municipal charter and powers as affected by usage, 463. 
 unlawful expenditure of money by municipal corporations not valid by- 
 usage, 464. 
 
 STOCK EXCHANGE. (See Principal and Agbnt.) 
 
INDEX. 545 
 
 SURETYSHIP, 
 
 usage to explain or add incidents to contracts o( 386. 
 
 8URVBY0RS. {See Officbs and Officers.) 
 
 THEATRE, 
 
 usage that actresses are only entitled to pay during theatrical season, though en- 
 gaged for " three years," 394. 
 what are customary duties of girl engaged as "danseuse," 397, 393. 
 
 TRADE-MARKS, 
 
 custom to use and imitate trade-marks of foreigners, 77. 
 
 TRESPASS, 
 
 owner allowing certain persons to cut timber on his land does not give license to 
 
 others, 38. 
 custom to pull down houses to prevent spread of fire, 64. 
 to turn plough on another's headland, 64. 
 to destroy corrupt victuals exposed for sale, 64. 
 to dig gravel on adjacent land to repair way, 64. 
 to have a watering-place in adjacent land, 64. 
 to dig for ballast, 64. 
 
 to dry nets on another's land, 64. i 
 
 to enter on close for horse-racing, 65. 
 
 custom for all inhabitants to play at games in a particular close, 65. 
 to dry nets on land adjacent to the sea, 66. 
 for victuallers to erect booths on common, 66. 
 to go through a p^.rticular house, 67. 
 to train horses beyond limits of parish, 67. 
 proper use of public or private way depends on custom, 331. 
 case of entering on another's lands, 332. 
 or letting cattle run, 332. 
 
 UNDERTAKERS, 
 
 usage of, to charge original cost of articles used at any funeral, although used 
 also at others, 11. 
 UNREASONABLE USAGES. {See Reasonableness.) 
 USAGES OF TRADE. (See Vendor and Purchaseb, and the various special 
 
 titles.) 
 USURY. {See Interest.) 
 
 VENDOR AND PURCHASER, (See also Interest ; Payment.) 
 
 usage in cloth trade that seller could demand goods back unless notified by buyer 
 
 within three days, a week, or a month, 33. 
 usage of merchants to deliver goods sold for cash without demanding the cash 
 
 when seller considers the purchaser good, 33. 
 unreasonable usages between vendor and purchaser, 69, 70. 
 
 custom authorizing, on contract for goods of specified character, delivery of 
 
 different goods, 69. 
 on sale of goods of one mill, delivery of goods of another mill, 69. 
 
 35 
 
546 INDEX. 
 
 VENDOR AND FUUCB. ASEU— Coniinmd. 
 
 that sales of particular class of goods are subject to appro7al of public in- 
 spector, but if there is no such inspector, buyer may rescind purchase at 
 pleasure, 69. 
 
 that no title passes, upon ordinary sale and delivery, without actual payment 
 of consideration within certain number of days, 69. 
 
 that if note is given for gold-mine, and it proves unproductive, it is given- 
 up, 69. 
 
 for merchants to sign receipts presented by cartmen with goods, without 
 inquiry on part of receiving-clerk as to their ownerstfip, or place from 
 which they were received, 69. 
 
 of board of trade, on cash sales of produce or provisions, giving buyer privi- 
 lege of having them inspected at his own expense, 69. 
 
 among dealers in cotton as to warehouse-receipts, 69. 
 
 that where the vendor of goods receives note of the consignee, without 
 indorsement of purchaser, latter is discharged, and maker alone remains 
 liable, 69. 
 
 among merchants to have their goods sent to their stores by long and circuit- 
 ous routes, 69. 
 
 to balance books annually and charge interest on running account, 69. 
 
 to put all big strawberries at top of box, 11. 
 usages of trade affecting sales, 303-318. 
 
 A. purchased of B. a number of bales of cotton, at a certain price per pound.. 
 Several months prior to the sale the cotton had been weighed by the wharf- 
 inger, and marked on the bags and in the books at 63,043 pounds. Wlien 
 the cotton was delivered it was reweighud by A., and found to amount to 
 only 61,205 pounds. A. thereupon paid B. for the cotton as of the latter 
 weight, but refused to pay for more than he had actually received. In a 
 suit by B. against A. for the difference, it was proved that, according to the 
 custom of the trade, cotton was weighed by the wharfinger before it was 
 put in store, and the weight marked on the bags and entered in books kept 
 for that purpose, and that w here a sale was made without any stipulation. 
 to the contrary, it was understood as being made upon the basis of the- 
 weights thus ascertained. Held, that A. was bound by the custom, and 
 that B. was entitled to recover. Conner v. Jtobinaon, 190. 
 other illustrations, 804, 805. 
 
 terms of sale, 305. 
 
 price — credit, 305. 
 
 warranties on sales, 306-308. 
 
 a warranty may be implied from the custom of a particular trade. It being 
 usual, in the sale by auction of drugs, to state in the catalogue if they 
 were sea-damaged or not, if nothing is said as to their quality they are 
 supposed to be sound. The defendants offered for sale a quantity of sea- 
 damaged pimento, without saying anything about its condition, which was 
 purchased by the plaintiff. Held, that this was equivnlent to n sale of the 
 goods as and for goods that were not sea-damaged, and that an action lay 
 for the fraud. Jones v. Bowden, 188. 
 conflicting cases, 306-808. 
 
 usage on gales by sample, 308. 
 
 on sales by manufacturer, 309. 
 
 pledgeor and pledgee, 810. 
 
 rules of law as to, not affected by contrary cuifom. 810. 
 
INDEX. 547 
 
 VENDOE AND fURCUASTSiU — Continued. 
 
 purchaser wishing; to rescind must rescind entire contract, 311. 
 
 contrary usage valid, 311, 313. 
 delivery of goods and passing of title, 813. 
 bflw affected by usage, 313. 
 
 where a custom exists in a certain business for the buyer to leave 
 goods bought by him in the hands of the seller, and it, is so noto- 
 rious as to be practically known to all persons dealing with the 
 seller in his business, goods so left in the hands of theseller for a 
 time not longer -than is clearly within the custom do not, on the 
 bankruptcy of the seller, pass to his assignee under the Bank- 
 ruptcy Act. Priestley v. Pratt, 201. 
 other illustrations, 814, 315. 
 usage to explain contracts of' sale, 372-382. 
 
 quality and description of goods contracted for ascertained by usage, 372r375. 
 "horn chains," in agreement to manufacture, 372. 
 "one foot high," in contract for trees, 372. 
 other instances, 372-375. 
 
 (See WoKDs and Phrases.) 
 quantity and price ascertained by usage, 375-378. 
 "crop of flax," in contract, 375. 
 "barrel," in sale of oil, 376. 
 "one thousand shingles," in contract, 376. 
 other cases, 377-381. 
 
 (See Words and Phrases.) 
 contradictory decisions, 379, 380. 
 usage may show whether contract is bailment or sale, 387. 
 
 contracts of sale, if hot ambiguous, cannot be altered by usage, 448-452. 
 criticism of some cases, 448. 
 
 where a statute declares that every pound of butter shall weigh sixteen 
 ounces, a custom that every pound of butter sold in a particular town 
 shall weigh eighteen ounces is bad. Noble v. Durell, 420. 
 statute requiring sales of liquor to be for cash, 460. 
 
 custom to sell at thirty days illegal, 460. 
 statute requiring assignment by writing, 460. 
 
 custom to assign by delivery void, 460. 
 usages against legal rules admitted, 472. 
 usages against legal rules rejected, 472. 
 
 YETEKINART SUR&EONS, 
 
 usage of, to charge for attendance as well as medicine when there Is not much 
 medicine required, 33, 53, 278. 
 
 VntGINIA, 
 
 doctrine in, as to ancient customs, 27. 
 
 custom of waygoing crop not recognized in, 259. 
 
 WAGES. (See Master and Servant ; Principal and Aqent.^ 
 
 WARRANTY. (See Vendor and Purchaser.) 
 
 WATERCOURSES, 
 
 what is proper use of, depends on custom, 332. 
 statutes as to — contrary custom void, 461. 
 
548 INDEX. 
 
 WILLS, 
 
 custom that land shall descend to the most worthy of the owner's blood, 31. 
 custom of party as to signing will, 79. 
 explaining doubtful words in will, 102. 
 usage admissible to explain wills, 398-400. 
 
 a testator gave to certain devisees "all mybsick lands." Held, that parol 
 evidence was admissible to designate the premises — as, by showing that 
 certain lands owned by him were usually known by that description Uy 
 him, and among his family and neighbors. Ryeraa v. Wheeler, 351. 
 to explain devise by evidence of usage, 898. 
 testator's habit of using particular term in particular sense, 398, 899. 
 
 illustrations, 898-400. 
 custom to transfer land by death-bed gift without will invalid, 400. 
 custom to give farms to eldest sons not admissible to establish gift, 400. 
 
 WITNESSES, (See also Proof op Usaob.) 
 
 witness's knowledge being not later than a year before his introduction, usage 
 
 inadmissible, 37. 
 one witness may prove a custom, 97, 98. 
 
 contrary dictum, in Wood v. Hiekok, criticised, 97. 
 conflicting decisions in South Carolina, 98. 
 rule in Alabama, 98. 
 in the federal courts, 98. 
 in Massachusetts, 98. 
 a usage of a particular business is not sufficiently proved by the testimony of 
 only one witness to support it, where another witness, equally familiar with the 
 business, denies it, and where other witnesses on the subject might be had. 
 Parrott v. Thaeher, 86, 99. 
 mode of proving usages and customs, 98-103. 
 where legal liability is to be affected, 99. 
 fact of usage must be shown, 99. 
 and not opinions of parties, 99. 
 
 witness need not testify to individual cases, if he swear to the/ae<, 100. 
 where mercantile terms are to be explained, 101. 
 persons may give their opinions, 101. 
 but not their opinions on its legal effect, 101. 
 admissibility of dictionary, 102. 
 to explain doubtful words in will, 102. 
 witnesses need not all agree, 104. 
 who may be called as witnesses, 103. 
 
 any person who knows of the custom as a fact, learned by observation, 103 
 customs of architects may be proved by builders, 103. 
 of adjusting losses on iron, by insurance-brokers, 103. 
 of banks, by customers of bank, 103. 
 
 WORDS AND PHRASES, 
 
 where mercantile terms are to be explained, persons may give their opinions 
 101. 
 but not their opinion on their legal effect, 101. 
 admissibility of dictionary, 102. 
 to explain doubtful words in will, 102. 
 usage may explain technical or unintelligible terms, 867. 
 may explain even unambiguous terms if used in a peculiar mode, 367. 
 
INDBX. "54^ 
 
 W0BD3 AND PHRASES — Con<tn«eii. 
 
 in a lease of a rabbit-warren, the lessee covenanted that at the expiration of the- 
 term he would leave on the warren ten thousand rabbits, the lessor paying for 
 them £60 per thousand. In an action by the lessee against the lessor 
 for refusing to pay for the rabbits left at the end of the term : held, that parol 
 evidence was admissible to show that by the custom of the country where the 
 lease was made, the word " thousand," as applied to rabbits, denoted twelve 
 hundred. Smith v. Wilson, 335. 
 
 usage to explain contracts of sale, 372-382. 
 
 visage to explain words in wills, 361, 398-400. 
 
 usage admissible to explain words and phrases in policies of insurance, 401-408. 
 
 and in bills of lading and other maritime contracts, 408-411. 
 
 words defined by act of Parliament — contrary usages void, 454. 
 
 Different Words and Phrases defined and construed by Usage, piusita. 
 
 "About." In contract of sale, 377. 
 
 "Across a country." In agreement for a horse-race, 389. 
 
 "Advertising chart," 394. 
 
 "Amelia Island." In insurance policy, 404. 
 
 " At 100s." In contract, 373. 
 
 " Back lands." In will, 351. 
 
 "Bale," 373, 878. 
 
 " Bale." In charter-party, 403. 
 
 "Bankers." In will, 400. 
 
 " Bar-iron." In insurance policy, 402. 
 
 "Barrel," 376. 
 
 "Belonging to exhibitors." In insurance policy, 258. 
 
 "Best E X. F. F. madder," 375. 
 
 "Boats." In insurance policy, 438. 
 
 " Bond," 386. 
 
 " Borrowed money," 386. 
 
 "Building." In contract, 443. 
 
 " Bushels." In statute, 454. 
 
 " Business card," 394. 
 
 " Cabinet and mahogany door maker." In agreement to teach trade, 394. 
 
 " Canada money," 386. 
 
 " Cargo." In policy of insurance, 402. 
 
 " Carpenters." In insurance policy, 259. 
 
 " Cas," 378. 
 
 "Certified." On check, 212. 
 
 " Cider," 375. 
 
 " City of London," 405; 
 
 "Clear," 442. 
 
 "Clough Overton's survey." In deed, 388. 
 
 "C. O. D." In bill of lading, 435. 
 
 "Colliery." In deed, 388. 
 
 "Consigned 6 mo.," 377. 
 
 "Corn." In insurance policy, 401. 
 
 " Cost," 378. 
 
 " Cost price," 378. 
 
 " Current funds." In note, 450. 
 
 "Currency," 386. 
 
 "Dangers of the river." In bill of lading, 436. 
 
550 INDEX. 
 
 WOEDS AND PHRASES— Cb»<tra«erf. 
 
 "Dangers of the seas." In bill of lading, 436, 440. 
 
 "Danseuse." In contract with dancing-girl, 897. 
 
 " Day." In contract for labor, 393. 
 
 "Days." In bill of lading, 408. 
 
 "Derby Line." In bill of lading, 408. 
 
 "Drawbridge." In agreement to build, 375. 
 
 "Estimated," 377. 
 
 "Ek boats Spencer and Gait," 378. 
 
 " Expected," 886. 
 
 "Face of the work." In building contract, 393. 
 
 "Feet." In contract for sale of lumber, 377. 
 
 "Fire by lightning." In insurance policy, 40S. 
 
 "Fire-works." In insurance policy, 259. 
 
 " Floors." In insurance policy, 407. 
 
 "For account of," 387. 
 
 "Foreign Mission Society." In will, 398. 
 
 " For J. Makinson." In packer's receipt, 381. 
 
 "For the purpose of keeping and storing." In insurance policy, 2S8. 
 
 "Frame house, filled in with brick." In insurance policy, 40S. 
 
 " Free from average." In insurance policy, 440. 
 
 "Freight." In charter-party, 409. 
 
 " Freight measurement." In charter-party, 409. 
 
 "Fresh seed," 375. 
 
 " Full and complete cargo." In charter-party, 411. 
 
 "Furniture." In insurance policy, 403. 
 
 " Gas-fixtures," 375. 
 
 " German cylinder glass." In contract of sale, 375. 
 
 " Glass-ware in casks." In policy of insurance, 439. 
 
 " Good custom cowhide boots." In contract of sale, 874. 
 
 " Good merchantable hay," 874. 
 
 " Good team." In contract for manufacture of mower, 375. 
 
 " Goods." In definition of common carrier, 215. 
 
 "Goods, specie, and effects." In policy of insurance, 403. 
 
 " Goods usually kept In country stores." In policy of insurance, 260, 
 
 "Grub," 442. 
 
 "Gravel." In deed, 888. 
 
 " Gulf of Finland." In insurance policy, 404* 
 
 " Harbor of Boston," 405. 
 
 " Hard-pan." In contract to excavate, 393. 
 
 " His crop of flax." In contract of sale, 875. 
 
 " Home of the Friendless." In will, 398. 
 
 "Homestead." In will, 400. 
 
 "Honored," 377. 
 
 " Horn chains." In contract to manufacture, 372. 
 
 "His. cy.," 386. 
 
 "Indian islands." In insurance policy, 404. 
 
 "Inhabitant." In statute, 463. 
 
 "In store," 387. 
 
 "I. x. X." In will, 400. 
 
 "Kentucky currency," 386. 
 
 "Kerosene." In insurance policy, 259, 260. 
 
INDEX. 551 
 
 WORDS AND PHRASES -^Con/inaed.. 
 
 " Kurty, 48 to 60 per cent carbonated soda-ash," 372. 
 
 " Lace buyer." In contract of service, 397. 
 
 " Lady-day." In lease, 270. 
 
 "Lanier House," 386. 
 
 "Less expense account." In bill, 378, noU. 
 
 "Level." In lease of mine, 390. 
 
 "Loading in turn." In charter-party, 409. 
 
 "Loading offshore." In insurance policy, 401. 
 
 "Long weight." In statute, 454. 
 
 "Lost time," 441. 
 
 " Mess pork of Soott & Co." In contract of sale, 375. 
 
 "Michaelmas." In lease, 270. 
 
 "Mills and manufactories." In insurance policy, 407. 
 
 "Mod." In will, 400. 
 
 "Month," 378. 
 
 " More or less," 451. 
 
 "Necessity or mercy." In statute, 460. 
 
 "Net balance," 377. 
 
 " Not insured." In bill of lading, 408. 
 
 " One foot high." In sale of trees, 372. 
 
 "One month," 379. 
 
 " One thousand feet," 377. 
 
 " One thousand." In lease, 271. 
 
 " One thousand." In contract for sale of shingles, 376. 
 
 " On freight," 378, 387. 
 
 " Other insurance." In policy, 440. 
 
 " Outfit." In policy of insurance, 401. 
 
 " O. X. X." In will, 400. 
 
 "Particular average." In policy of insurance, 403. 
 
 "Perils of the seas." In bill of lading, 436, 439. 
 
 "Pig-iron." In contract of sale, 373. 
 
 "Pitch-pine timber of average quality," 375. 
 
 "Port of New Orleans." In insurance policy, 401 
 
 "Port risk;" In policy of insurance, 403. 
 
 "PreaOhers of Christ's Holy Gospel." In will, S9& 
 "Premises." In deed, 388. 
 
 " Prime logs," 374. " 
 
 " Prime singed bacon." In contract of sale, 447. 
 
 " Privilege." In charter-party, 409. 
 
 "Privilege of deepening the ditch." In deed, H88. 
 
 "Privilege of reshipping." In bill of lading, 408. 
 
 " Proceeds." In insurance policy, 256. 
 
 " Proceeds." In policy of insurance, 408. 
 
 <• Product," 374. 
 
 " Prudential concerns." In statute, 464. 
 
 •iPuWished," 394. 
 
 " Quantity guaranteed." In bill of Ifiding, 408. 
 
 " Quarters of corn." In statute, 454. 
 
 "Rainy days." In bill of lading, 408. 
 
 " Room." In insurance policy, 405. 
 
 "Ttoo<w." T'l 'T.-^u-t^noe -^rlic", ^''^ 
 
552 INDEX. 
 
 WORDS AND PHRASES — Co»<t»M«rf.. * 
 
 " Rope manufacturer." In insurance policy, 260, 
 " Salesmen." In contract of service, 897. 
 "Salt." In insurance policy, 401. 
 " Same ground." In contract for service, 397. 
 " Saw-mill." In deed, 388. 
 ^' Sea letter." In policy of insurance, 403. 
 " Season," 374, 378. 
 
 " Ship-carpenter's work." In contract for service, 397. 
 " Short," 377. 
 
 " Six months after date." In contract, 447. 
 "Skins." In insurance policy, 401. 
 " Spoiled lumber," 375. 
 
 " Standing detached." In insurance policy, 408. 
 " Store fixtures." In insurance policy, 405. 
 
 ■" Storing of oil and spirituous liquors." In insurance policy, 259. 
 ■" Tapering brushes." In specification for patent, 339. 
 " Terms cash," 377. 
 
 ■" Terms £2 10s per cent monthly." In invoice^ 381. 
 ■"Texas money," 386. 
 ■" The church." In will, 398. 
 " Their freight." In bill of lading, 408. 
 " Timber for building." In deed, 388. 
 ■" Tobacco pressing." In insurance policy, 408. 
 ■" Ton." In statute, 454. 
 *' Town." In contract, 405. 
 " YoysLge." In insurance policy, 257. 
 
 " Warranted to depart with convoy." In policy of insurance, 403L 
 " Waste lands." In deed, 388. 
 " Weekly accounts." In building contract, 393. 
 " Wet, dirty, and inferior oil." In contract of sale, 879. 
 " Wet oil," 375. 
 
 " Whaling voyage." In policy of insurance, 403. 
 " White," 373. 
 
 " Wholesale factory pripes." In note, 377. 
 " Winter-strained lamp oil." In contract of sale, 374. 
 "With all faults," 375. 
 "Wood-house." In insurance policy, 407. 
 " Yard." In insurance policy, 406. 
 " Years." In contract with actress, 394. 
 " Your wool," 378. 
 "Zinc." Indeed, 388. 
 
-MSL^