ships or factories wheresoever she might call. Held, that the policy does not protect an outward cargo shipped before the vessel's arrival on the coast of Africa. After stating the facts, his Lordship said: "In this case it is with regret that we find ourselves obliged to come to the conclusion that the plaintiffs are not entitled to recover for a total loss, because it appears very likely that the assured intended by this policy to insure both the outward and homeward cargo, and to have valued both, inasmuch as a great part of the outward cargo would, in such a voyage, remain on board, and would be continually vary ing in the course of barter; and nothing is more probable, than that the entire cargo should be valued, to prevent difficulty of valuation in the case of loss. Unfortunately, however, they have used words which will not, we think, effectuate that intention. The question in this and other cases of construction of written instruments is, not what was the intention of the parties, but what is the meaning of the words they have used." Then, referring to the cases of Robertson v. French, 4 East, 130; Sputta v. Woodman, 2 Taunt. 416; Horneyor v. Lushington, 15 East, 46; Langhorn v. Hardy, 4 Taunt. 630, and others, as establishing that where the policy is upon goods "from the loading thereof," either at a particular place, or in blank upon a voyage from one place to another, it does not attach upon goods previously on board, and stating that this had been

relaxed where there was anything upon the face of the instrument to satisfy the court that the policy was intended to cover goods previously on board, his Lordship thus sums up: "The question then is, whether there is anything disclosed upon the face of this policy by which the court can be convinced that it was intended to attach upon the outward cargo." See also Bell v. Hobson, 16 East, 240; S. C., 3 Campb. 273; 1 Arn. Ins. 420, § 158.

1 In Howe v. Mut. Safety Ins. Co., 1 Sandf. 137, 2 Comst. 235, Sandford, J., said: "There is a great variety of cases in which the courts have permitted evidence to be given, to show the meaning of the terms in commerce and the arts, or of words and phrases peculiar to mercantile pursuits. This is generally spoken of as a proof of usage, although in many cases it is rather the definition of technical language." In illustration of the principle upon which cases proceed, the court instanced the case of "roots" being proved not to include sarsaparilla; in the clause relative to average in a marine policy, the insurance being on sarsaparilla. Coit v. Commercial Ins. Co., 7 Johns. 385. So, where the term "skins," in a like instance, did not include bear-skins having the fur on them. Astor v. Union Ins. Co., 7 Cow, 202. The word "outfits" in policies on whaling vessels includes one fourth of the catchings, the catching becoming virtually the proceeds of a large portion of the outfits, and the

like. Macy v. Whaling Ins. Co., 9 Met. 354. So, where proof had been allowed of the meaning of the term "sea-letter" in policies at a particular port; the meaning of the word "cargo," in particular voyages and lines of trade; the customs of a particular trade in respect of convoy; the mode of unlading goods at the port of destination; the period of detention allowable at intermediate ports for landing parts of a cargo; the meaning of "proceeds of goods shipped," and the like.

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So in England it has been held that 39 corn is a general term, including many particulars, as peas and beans, Mason v. Skurray, Park, 245, 253 (8th ed.) and malt, Moody v. Surridge, Id. 245; though it did not include rice, Scott v. Bourdillon, 2 Bos. & Pul. N. R. 213; and the term salt has been held not to include saltpetre. Per Wilson, J., Park, 245. See also Parr v. Anderson, 6 East, 202. In this case the question whether an insurance of a ship with or without letter of marque, upon a certain voyage and commercial adventure from A to B, enables her to chase, for the purpose of attack and capture, any vessel she may happen to descry in the course of the voyage insured, in whatever direction, or to any limit, and whether known at the commencement of such chasing to be an enemy or not; or whether those words are to be con

fined to a leave to employ force only for

the purpose of defence (including a liberty of attack and chase only so far as they may be fairly supposed to promote ultimate security), the answer was held to depend, in the absence of any legal decision as to their construction, upon the received practice and known sense of commercial men, if any such received practice there be in the use of them. And, to ascertain the commercial usage and practice in that respect, the cause was referred to another trial. See Constable v. Noble, 2 Taunt. 403; Payne v. Hutchinson, Id. 405, in notes; De Longuemere v. Firemen's Ins. Co., 10 Johns. 126; De Longuemere v. N. Y. Fire Ins. Co., Id. 120, defining the word "port" with reference to the subject-matter to which it is applied. Taylor v. Briggs, 2 Car. & P. 525; Deght v. Hartshorne and others, 2 Johns. 531. See also the opinions of Mr. Baron Parke, and Lord Chief Justice Tindal, in the case of Attorney-General v. Shore, 11 Simon, 592, where an able résumé of the entire subject of admissibility of parol evidence on this ground will be found. See also 1 Greenl. Ev. §§ 329, 330, and authorities there cited. 1 Phillips, Ins. p. 93, et seq. Eaton v. Smith, 20 Pick. 156. In a policy upon a ship and its furniture, the term "furniture was held, by virtue of usage, to include the provisions. Brough v. Whitmore, 4 T. R. 206.

great force.

materiality of such intelligence or rumors was a question for the jury, under the circumstances of the case, and ought not to rest upon the opinions of mercantile men. In the other case, Holroyd, J., permitted a witness conversant with insurance business to give his opinion, as a matter of judgment, whether the communication of particular facts would have enhanced the premium. But such testimony was subsequently held, by Denman, C. J., and his associates, to be inadmissible. Campbell v. Rickards, 5 B. & Ad. 840. The former decision is also adopted in Jefferson Ins. Co. v. Cotheal, 7 Wend. 79. Sutherland, J., quoting from Chief Justice Gibbs, supra, says: "It is the province of a jury, and not of individual underwriters, to decide what facts ought to be communicated. It is not a question of science in which scientific men will mostly think alike, but a question of opinion liable to be governed by fancy, and in which the diversity might be endless." The case of examination of experts respecting the sea-worthiness of a ship was put by Lord Ellenborough upon the same ground as calling a physician or surgeon in cases belonging to science and experience in their professions. Chapman v. Walton, 10 Bing. 57; Richards v. Murdock et al., 10 B. &. C. 527, overruled by Campbell v. Rickards, 5 B. & Ad. 840.

When the meaning of a word used to designate an article of trade is to be fixed by proof of mercantile usage, it may be by the usage of trade among

merchants dealing particularly in that article. Astor v. Union Ins. Co., 7 Cow. 202. In the case of Coit v. Columbian Ins. Co., the words of the memorandum were "vegetables and roots, and all other articles perishable in their own nature." This phrase was introduced to apply more specifically to onions, beets, &c., being roots perishable in their own nature. Sarsaparilla being a dry, hard root, not liable to decay, evidence was therefore admitted to show that mercantile usage excluded these from the term "roots." The language of the clause therefore defined itself, and gave the clew to its construction. Carter v. Boehm, 3 Burr. 1905, 1913, 1916. See Crofts v. Marshall, 7. P. & C. 597 ; Hall v. Ocean Ins. Co., 21 Pick. 472.

1.1 Arn. Ins. 77, 342, 434; Pelly v. R. Ex. Ass. Co., 1 Burr. 349, 1 Duer Ins. 180. In Schooner Reeside, 2 Sumn., Mr. Justice Story says: "I own myself no friend to the almost indiscriminate habit, of late years, of setting up particular usages or customs in almost all kind of business and trade, 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 misunderstandings and misinterpretations and abuses, to outweigh the well-known and wellsettled principles of law."

1 Lord Ellenborough, in Robertson v. French, 4 East, 135, said: "We are not to adopt that meaning to which the etymology of the words, or their employment by classic writers, or the definitions of lexicographers, might alone direct us; nor that construction of a clause or sentence which a strict attention to its grammatical structure would seem to require; but common and general use is to guide us to their true acceptation." This is but an adoption of the principle asserted by Grotius (De Jur. B. & P., Lib. II. c. 16). The words are to be understood according to their proper meaning, not the grammatical one, which regards the etymon and original of them, but what is vulgar and most in use; for use is the judge, the law, and rule of speech. So in Coit v. Com. Ins. Co., 7 Johns. 390, it is said: "If any terms in a policy have, by the known usage of trade, or by use and practice, as between assurers and assured, acquired an appropriate sense, they shall be construed according to that sense and meaning."

The remarks of Mr. Justice Story, in Palmer v. Warren Ins. Co., 1 Story C. C. 360, may also be cited in illustration: "Policies of insurance are generally drawn up in loose and inartificial language, and indeed in the language of common life, and therefore are al

ways construed liberally, and rarely, if it is possible, subjected to any nice or narrow or critical strictness, or any technical interpretation. We look rather to the intent than to grammatical accuracy in the use of language." Clark v. United M. & F. Ins. Co., 7 Mass. 369, per Sewall, J.: "A reference to usage is fairly implied in contracts of a commercial nature, and is to be presumed, indeed, in the construction of contracts generally, where the conclusion is not avoided by special circumstances or stipulations." Smith v. Wilson, 3 B. & Ad. 728, is a case strongly illustrative of the force of usage. See this case stated infra, p. 83, n. 2. Parke, J., in delivering the opinion, adopts the language of Mr. Starkie. He says: "The rule deducible from the authorities on this subject is correctly laid down in 3 Starkie on Evidence, 1033. Where terms are used which are known and understood by a particular class of persons in a certain special and peculiar sense, evidence to that effect is admissible for the purpose of applying the instrument to its proper subject-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 language, which the courts are not bound to understand. Such an instrument is not, on that account, void;