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word bears a sense different from its ordinary legal acceptation, unless where the deed expressly refers to such customary or peculiar sense. It was, indeed, ruled by Lord Kenyon, C. J. in a case at nisi prius (1), that, where the holding of certain lands in the city of Canterbury was from Michaelmas to Michaelmas, evidence was admissible to show that, by the custom of the county of Kent, all demises to hold "from Michaelmas" commenced at Old Michaelmas. But the authority of this case seems overturned by that of Doe on the demise of Spicer v. Lea (2). One of the questions there was, whether a lease from Michaelmas generally, which prima facie must be taken to mean New Michaelmas, was capable of being shown by extrinsic evidence, (such as the fact of a previous holding by the same tenant, and the understanding of the parties,) to mean Old Michaelmas. And to support the affirmative, the decision, already mentioned, of Lord Kenyon at nisi prius, was cited and relied on. But the court of King's Bench were of opinion, that no extrinsic evidence could be given to explain the time of holding stated in the deed, which *must be taken to be from New Michaelmas, since the act of parliament for altering the style; unless, as Lord Ellenborough, C. J. observed, there had been some reference in the deed itself to the prior holding. The same principle which governs the last case seems equally applicable to agreements to sell a certain number of acres of land generally, in which case the acres are to be computed, not according to the custom of the place, but by the statute measure (1); though, it must be confessed that, in some cases, where the number of acres may be thought to have been put rather by way of description than measurement, or where some other grounds (not, indeed, very definable) appeared for an exception to the general rule, they have been computed according to the general

(1) Forley dem. the Mayor of Canterbury v. Wood, cited in 11 East 313.

(2) 11 East 212.

(1) Wing v. Earle, Cro. El. 267. Morgan v. Tedcastle, Poph. 55. Waddy v. Newton, Mod. 276., and see 3 T. R. 274.

understanding of the country (2). And, from analogy to the rule above mentioned, on a sale of so many bushels of corn generally, (supposing, that a custom to sell by any other than the Winchester measure were not illegal and void (3),) it might, perhaps, be laid down, notwithstanding a dictum in an old case to the contrary (4), that the bushel must be intended to mean not the customary but the statute bushel (5). It appears, indeed, to be a general principle, that when a word is used which has a legal meaning, it must be understood in its legal acceptation (6).

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3. Policies of insurance, though not specialty contracts, Mercantile are within the same rule, and cannot be contradicted or contracts. varied by any unwritten agreement made by the parties previous to the time of signing the policy. Thus, in an early case, where, in an action on a policy of insurance from Archangel to Leghorn, the defendant attempted to show, that the agreement before the subscription of the *policy was, that the adventure should begin only from the Downs, the Court would not admit the evidence (1). Lord Chief Justice Pemberton in that case said, that policies were sacred things, and that a merchant should no more be allowed to go from what he had subscribed in them, than he, who subscribes a bill of exchange payable at such a day, shall be allowed to go from it, and say, it was agreed to be on condition, &c., when it may be, that the bill had been negotiated; for though neither of them are specialties, they are of great credit, and much for the support and advantage of trade (a).

(2) Morgan v. Tedcastle, Poph. 55. 2 Roll. Rep. 67. Sir J. Bruin's case, cited 6 Rep. 67. Some v. Taylor, Cro. El. 665.

(3) See R. v. Major, 4 T. R. 750. Master, &c. of St. Cross v. Lord Howard de Walden, 6 T. R. 338.

(4) Per Croke, J. in Floyd v. Bethill, 1 Roll. Rep. 420.

(5) Hockin v. Cooke, 4 T. R.

314.

(6) 6 T. R. 344.

(1) Kaines v. Knightly, Skin. 54. S. C., referred to in Bates v. Grabham, 2 Salk. 444., but mis-stated. Weston v. Emes, 1 Taunt. 115. Uhde v. Walters, 3 Campb. 16.

(a) Where the terms of a policy are clear and unequivocal, parol evidence will not be admitted to show a mistake, or to vary or explain them, except in those peculiar cases in which the usage

The same rule of course applies to charter-parties; for they are under seal. Therefore, in a nisi prius case, where a ship was chartered to wait for convoy at Portsmouth, Lord Kenyon would not suffer a parol agreement to be set up on the other side to substitute Corunna for Portsmouth (2). And this doctrine was sustained by the court of King's Bench in the case of White v. Parkin (3), though they held that it did not apply to that particular

case.

Upon the same principle, in an action on a promissory note or bill of exchange, the defendant will not be allowed to give evidence of an agreement between him and the plaintiff, at the time of making the note, that it should be renewed, and that payment should not be demanded on its becoming due (4) (b). So, in the case of contracts of hiring between masters of ships and seamen, (though they are directed by statute to be in writing, under a penalty to be

(2) Leslie v. De la Torre, cited

12 East 583.

(3) 12 East 578.

(4) Hoare v. Graham, 3 Campb. 57. Hogg v. Snaith, 1 Taunt. 347

New-York Ins. Comp. v.

of trade is allowed to be proved. Thomas, 3 Johns. Cas. 1. Mumford v. Hallett, 1 Johns. Rep. 433. Cheriot v. Barker, 2 Johns. Rep. 346. Hogan v. Del. Ins. Co. C. C. U. S. P. 1 Condy's Marsh. 345. a. Vandervoort v. Smith, 2 Caines' Rep. 155. Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch 206.

(b) So, where no time or place of payment is specified in a promissory note, parol evidence is inadmissible to show, that it was not intended to be payable immediately, or that it was to be paid at a place different from that in which it was made. Thompson v. Ketcham, 8 Johns. Rep. 189. But as between the immediate parties to a negotiable instrument, or to the transfer of such instrument, it is competent for the defendant, notwithstanding the words for value received, to prove that no consideration had in fact passed from the plaintiff. Pearson v. Pearson, 7 Johns. Rep. 26. Herrick v. Carman, 10 Johns. Rep. 224. So, parol evidence is admissible to connect some trust or condition to a bill or note, not appearing on the face of the instrument. Barker v. Prentiss, 6 Mass. Rep. 430.

inflicted on the master, and it has not been decided that they are void, if unwritten,) still, when once reduced into writing, they cannot be varied or added to by parol. Thus, it was ruled in the court of Common Pleas, that a *mate in a slave-ship could not, on the ground of a verbal promise, claim the perquisite of the price of a negro slave beyond the wages due to him by certain written articles of agreement executed between the master, officers, and crew (1).

However, it has been long determined by a variety of cases, that mercantile contracts, such as policies of insurance, charter-parties, and others of a like-nature, are to be construed conformably with the usage and custom of merchants (a). On mercantile contracts relating to insurance, said Lord Hardwicke, in a case before him, courts of law examine and hear witnesses, of what is the usage and understanding of merchants conversant therein; for they have a style peculiar to themselves, which is short, yet is understood by them, and must be the rule of construction (2). Thus, where an insurance was on a ship from London to the East Indies, warranted to depart with convoy, the Court held, that this clause of warranty must be construed according to the usage among merchants, that is, from such place where convoys are to be had, as from the Downs (3); so, where the insurance is on goods till landed, and the defence is, that the plaintiff has been guilty of unreasonable delay in landing, the question can only be decided by knowing the usual practice of the trade, with which every underwriter is supposed to be acquainted, whether the practice has been recently or long established (4) (b).

(1) White v. Wilson, 2 Bos. and Pull. 116.

510.

(2) 1 Ves. 459. 2 Ves. 331. And see Uhde v. Walters, 3 Campb. 16. 503.

Lethulier's case, 2 Salk. 443.
Noble v. Kennoway, 1 Doug.
Vallance v. Dewar, 1 Camp.

(a) Vide Parr v. Anderson, 6 East's Rep. 202. Urquhart v. Barnard, 1 Taunt. 450. 457.

(b) Parol evidence was admitted to show that by the general usage among merchants and underwriters in New-York, the word

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It has indeed been doubted by judges of the highest authority, whether the practice of admitting such evidence has not been carried to an inconvenient length. In the late case of Anderson v. Pitcher, (5), Lord Eldon, C. J. expressed himself in the following terms: "It is now too late to say, *that this warranty is not to be expounded with due regard to the usage of trade. Perhaps it is to be lamented, that in policies of insurance, parties should not be left to express their own meaning by the terms of the instrument. This seems to have been the opinion of that great judge Lord Holt (1). It is true, indeed, that Lord Mansfield, who may be considered the establisher, if not the author, of a great part of this law, expressed himself thus: 'Wherever you render additional words necessary, and multiply them, you also multiply doubts and criticisms (2).' Whether, however, it be not true, that as much subtilty is raised by the application of usage to the construction of a contract, as by the introduction of additional words, might, if the matter were res integra, be reasonably questioned."

But though the usage of merchants, with reference to which the parties are supposed to contract, may be frequently resorted to for explaining or defining the terms of

(5) 2 Bos. & Pull. 168.

(1) Lethulier's case, 2 Salk. 443.

(2) Lilly v. Ewer, 1 Doug. 74.

roots in the memorandum of a policy was confined to such roots as are perishable in their own nature. Coit and Pierpoint v. Commercial Ins. Co. 7 Johns. Rep. 385. In an action against the owners of a vessel, for a quantity of gold and silver coin, taken by the master on freight, evidence of a custom of merchants, that the freight of money received by the master was his perquisite, and that he was to be personally liable on the contract, and not the owners was held, to be admissible. Halsey v. Brown and others, 8 Day 346. The true test of a commercial usage is, its having existed a sufficient length of time to have become generally known, and to warrant a presumption, that contracts are made in reference to it. Smith & Stanley v. Wright, 1 Caines' Rep. 43. Trott v. Wood, Rep. C. C. U. S. First Circt. 443.