grace. Although evidence is not admissible to show that usage was in fact different from that which it was established to be by judicial decisions, yet it may be shown that it was subsequently changed. Cookendorfer v. Preston, 4 How., 317.

84. If the indorser of a note dated at Georgetown, D. C., and held by a bank in that town, resides in the country two or three miles from the bank, but has a house or place of business within half a mile of the bank, where it was generally known, and especially known to the runner of the bank, that he kept his account books and received his ordinary bank notices. newspapers, foreign letters, etc., a notice left for him at the post office in Georgetown, and directed to him at Georgetown, although that was his nearest postoffice and the one from which he usually received his letters which came by the mail, is not a sufficient notice to charge him as indorser, unless conformable to a well-known usage of the bank, known to the defendant at the time of his indorsement. Bank of Columbia v. Lawrence, 2 Cr. C. C., 510. $85. The time for demand, notice and protest of a promissory note discounted at a bank depends upon the custom of the bank, and a person who indorses such a note with the knowledge of the custom is bound thereby. Bank of Columbia v. McKenny, 3 Cr. C. C., 361 .

$86. In the county of Washington, D. C., according to the usage and practice of the banks and notaries public in that county, demand of payment of a promissory note and notice to the indorser on the day after the last day of grace is not too late to charge indorsers resident in that county having a knowledge of such usage and practice at the time of indorsing. Smith v. Glover, 2 Cr. C. C., 334.

§ 87. If, at the time of the indorsement of a promissory note, which was made negotiable at a certain bank, it was the general usage of the banks and notaries in the District of Columbia, where the bank was situated, to give notice to the indorsers on the day after the last day of grace, and such usage was known to the defendant at the time of his indorsement, he is bound by such usage, and the notice so given is in due time. Bank of Columbia . Lawrence, 2 Cr. C. C., 510.

§ SS. Brokers, bankers and others cannot establish by proof a usage or custom in dealing in negotiable paper, which, in their own interest, contravenes the established commercial law. Thus certain treasury notes convertible into bonds at maturity at the option of the holder, having come into the possession of bankers after they had become due and the interest had ceased thereon, such bankers could not, for the purpose of cutting off the rights of antecedent holders from whom the bonds had been stolen, show that treasury notes continued to be bought and sold after they had become due and interest had ceased; and that it was not customary for dealers in government securities to keep records or lists of the numbers or description of bonds alleged to have been lost, stolen, etc., or to refer to such lists before purchasing such securities. Vermilye & Co. v. Adams Express Co., 21 Wall., 138.

§ 89. In remitting money.- When a creditor directs his debtor to remit the amount of a debt, and there is a custom among merchants in the towns where the debtor and creditor reside to send and receive money by mail, it will be competent to prove such custom to the jury, and from it they may infer authority given by the creditor to remit the money by mail. Selman v. Dun,* 5 West. L. J. (N. S.), 459.

§ 90. A custom or usage in one place as to the mode of remitting money to another place is not valid unless it extends as well to the latter as to the place from which it is sent. Hence where plaintiff directed defendant to deposit money his due to his credit in the Exchange Bank of Denver, but the latter deposited the amount in a Kansas City bank, taking a deposit slip in favor of the Exchange Bank, the Kansas City bank having failed immediately after the deposit, held, that the custom or usage in Kansas City of remitting money in this way was not sufficient to protect the defendant from liability, no such custom being recognized in Denver. Earnest v. Stoller,* 2 McC., 380; 5 Dill., 438.

§ 91. Of whalers and scamen.- Where a seaman disabled in the service of a whaling ship is necessarily left abroad, he is by the common usage among whalers entitled to be paid from the ultimate proceeds the same proportion of his lay for the whole voyage as the time he served was of the time of the whole voyage. Brunent v. Taber, 1 Spr., 243.

§ 92. The usage among whalers that where the crews of two different vessels engage in pursuit of a whale the ship's crew which first strikes so that the iron remains fast has the better right, the pursuit still continuing, although the other crew eventually capture the whale, held to be a valid usage. Swift v. Clifford, 2 Low., 110.

§ 93. Fisherman on mackerel voyages, in licensed and enrolled vessels, so far come within the general rule of law relating to hired seamen as to be entitled to be cured at the ship's expense, and the rule is not affected by a local usage to the contrary. Knight v. Parsons, 1 Spr., 279.

$94. Of particular trades.- Where there there is a notorious custom in a particular branch of commerce of stowing goods of a particular description on board ship in a certain way, shippers who consider such mode of stowing hazardous must notify carriers of their

wish to have a different one adopted, or they will not be entitled to charge the latter with injuries received in consequence of its adoption. Baxter v. Leland, Abb. Adm., 348.

$95. The known usage of trade and navigation from New Orleans to northern ports in the summer season, to touch at Havana for further cargo, prevents such act being a deviation, although the freighter had no notice of the intention of the master to make that port on the particular voyage. Thatcher v. McCulloh, Olc., 365.

$96. Where bills are remitted by a merchant to his factor, to be converted into available funds, and the factor mingles the property of the merchant with that of others, by selling the bills on a credit and taking a joint note, covering other sums than that stipulated to be paid for the bills, this is in accordance with the general usage, and if the parties to the note become insolvent before it is due the factor will not be held responsible, in consequence of the mere act of taking such joint note, for the loss sustained by his employer. Hamilton v. Cunningham, 2 Marsh., 350.

§ 97. Evidence to prove a particular course of trade or other matter in the nature of facts is admissible, but not to prove what or how the law is considered by merchants. Ruan v. Gardner, 1 Wash., 145.

§ 98. There is no established custom of trade between Portland and Boston authorizing the master to carry goods on deck without the consent of the owner. The Paragon, 1 Ware, 322. § 99. Proof of a usage long established, uniform and well known, to the effect that under a bill of lading in the usual form, with the words "privilege of reshipping" inserted, a boat from below bound to any place above the falls in the Ohio river may wait there for a rise of water for a month or more without incurring liability for not delivering the cargo within a reasonable time, is admissible. Broodwell v. Butler, 6 McL., 296; Newb., 171.

§ 100. The libelant, master of a vessel, chartered her to respondent to bring a quantity of spars from T. to N., the cargo to be delivered by respondent within reach of the vessel's tackles, by whom also eight feet of water at the place of loading was guarantied. The vessel was loaded in eight feet of water, but it seems that to reach the open sea she was obliged to pass by the mouth of an inlet where there was but seven feet of water, so the vessel was only loaded to draw seven feet of water, and the remainder of the spars were formed into a raft. The vessel encountering severe weather in its passage to the sea, the raft which was in tow was lost. Held, that as the contract expressly provided that the spars were to be delivered within reach of the vessel's tackles, so that if any lightering was required it should be done by the respondent, evidence could not be introduced by the latter to show that by an established usage and custom the master should have employed lighters to carry down the remaining spars to the vessel after she had passed the mouth of the inlet. Hart v. Shaw, 1 Cliff., 358.

§ 101. By the custom existing at the ports of the great northern and northwestern lakes the master of a steamboat or vessel, employed as a general ship, has, by virtue of his office of master, full authority, upon the receipt of merchandise and other property on board his vessel, subject to a lien for prior freight and charges of carriers and warehousemen for previous transportation, storage, etc., of such merchandise and property while on its way to its ultimate destination, to contract in and by his bill of lading to receive and transport such merchandise and property to its port of destination, to receive such prior freight and charges on the delivery of such merchandise and property, and to bring back and pay over to such shipper, on the return of his vessel, the moneys received for such prior charges, if such is the ordinary course of the usual employment of such steamboat or vessel. Such custom is reasonable and lawful, and such a contract, when authorized by a well-known, long-established and universal custom, is binding in every respect. The Steamboat Hendrik Hudson,* 17 Law Rep., 93.

§ 102. The general usage and custom in the transportation of goods by water to stow them under deck annexes to the contract contained in the ordinary bill of lading the condition, as a general rule, that they shall be so carried. But where the law attaches conditions to such a contract, founded not on the terms of the agreement, but on general custom, proof of a different custom of a particular trade may be given to show that the general custom does not apply to that trade. Such proof merely shows that, so far as that particular trade is concerned, the general custom does not exist, and therefore no presumption of law can be founded upon it. Chubb v. About Seven Thousand Eight Hundred Bushels of Oats,* 16 Law Rep. (N. S.), 492.

§ 103. Whether, under the established usage among steamboats plying upon the Hudson river, the mere hiring of a pilot at monthly wages, effected prior to the commencement of the season of navigation, carries with it an implied engagement that the employment shall continue throughout the entire season, quære? Truesdale v. Young, Abb. Adm., 391.

104. The custom with steamboat owners on the Hudson river is to hire masters, pilots and engineers for the season at a yearly salary, payable in ten equal parts, the season for the pur

pose being understood to begin with March and end with December. Where a master of a boat was hired by the owners in that manner for a succession of seasons, and during the period the vessel was chartered for a term ending the 1st of January, and the master continued with her subsequently without giving proof of any special contract of hiring, and beginning actual service on board the 1st of March, it will be implied the hiring was for the season according to usage, and that it commenced on the 1st of January and not on the 1st of March. The Steamboat Swallow, Olc., 334.

§ 105. Where a railroad company enters into a contract with an individual for the shipment of hay at special rates, no time being fixed for the shipment of the hay, and the shipper fulfills his part of the contract within a reasonable time, the company will not be allowed to show, for the purpose of avoiding the contract, a general rule among railroad companies that all such special contracts expire at the end of the year, and that for that reason it had the right to charge regular tariff rates. Martin v. Union Pacific R. Co.,* 1 Wyom. T'y, 143.

§ 106. A. entered into a contract with a railroad company to build bridges at a fixed sum per foot, to be paid partly in cash and partly in-stock of the company, nothing being agreed upon as to the time or place of payment. Held, that, inasmuch as it appeared to be the custom of the company to pay A. and its other contractors monthly in accordance with estimates made by its engineer at the end of each month as to the amount of work done, this custom should be taken as the rule of payment under the contract, and for that reason it was not necessary, in order to enable A. to maintain a suit for payment, that there should have been a demand made and a refusal. Boody v. The Rutland & Burlington R. Co., 3 Blatch., 25.

§ 107. Where a contract for the delivery of barley is silent as to the manner of delivery, viz., as to whether it should be delivered in sacks or loose, proof of custom to deliver in sacks may be received, as such evidence does not tend to contradict the contract, but to define its meaning in an important point where by its written terms it was left undefined. Robinson v. United States, 13 Wall., 363.

§ 108. It is competent to show a usage in the grain trade in California to deliver grain in sacks, nothing being said in the contract as to whether it is to be delivered in bulk or in sacks. United States v. Robinson, 1 Saw., 219.

§ 109. Manner of delivery of goods in port.- By the established course and custom of the coasting trade in New York, goods on freight may be delivered at the wharf and need not be tendered personally to the consignees. The ship cannot abandon the goods at the wharf because of the inability or refusal of the consignee to receive them. The Ship Grafton, Olc., 43.

§ 110. A policy on goods to be landed safely at Leghorn is discharged by landing them at the Lazaretto; that being the usage of trade. Gracie v. The Marine Insurance Co. of Baltimore, 8 Cr., 75.

§ 111. A usage of consignees at a particular port to receive shipments during the quarantine season at the quarantine grounds, as being a compliance with the engagement of the bill of lading to deliver at such port, is valid, and the bill of lading should be construed with refence to it. Bradstreet v. Heron, Abb. Adm., 209.

§ 112. The custom of the lake ports that the master twenty-four hours after the report of his arrival may store the freight subject to charges at the nearest port, if the consignees have not in the meantime provided for the delivery, can have no force at Port Colborne, where there is no opportunity to discharge a cargo except at one place, and where there was slight evidence of a custom for vessels to wait their turn. Strong v. Carrington,* 2 Am. L. Reg. (N. S.), 287.

§ 113. Where a bill of lading, the only written contract between the parties, makes no mention of the number of days within which the cargo should be discharged, the master is obliged to conform to the usage and practice that existed regulating the delivery. Higgins v. United States Mail Steamship Co., 3 Blatch., 282.

§ 114. Under a contract entered into by a common carrier by water "to deliver in like good order and condition at the port of B. unto G. & C.," a good delivery, to satisfy the exigencies of the contract, will depend on the known and established usages of the particular trade and the well known usages of the port in which the delivery is to be made. And where there is no allegation of a particular custom as to the mode and place of delivery, the general usages of the commercial and maritime law as settled by judicial decisions will be applied. Richardson v. Goddard, 23 How., 28.

§ 115. Insurance.— No acts justifiable by the usage of the trade, and done by the plaintiffs to avoid confiscation under the laws of Spain, can avoid a policy of insurance (against capture only). Livingston v. The Maryland Ins. Co., 7 Cr., 506.

§ 116. If, by the usage of the trade insured, it be necessary that certain papers should be on board, the concealment of those papers cannot affect the plaintiff's right to recover on the policy. Ibid.

§ 117. The usage or custom of a particular port in a particular trade is not such a usage or custom as will, in contemplation of law, limit, control or qualify the language of contracts of insurance. It must be some known general usage or custom in the trade, both applicable and applied to all ports of the state, and so notorious as to afford a presumption that all contracts of insurance in that trade are made with reference to it, as a part of the policy. Rogers v. Mechanics' Ins. Co., 1 Story, 603.

§ 118. In construing a policy of insurance the usages of trade must be taken into consideration. Hancox v. Fishing Ins. Co., 3 Sumn., 132.

$119. Evidence of a usage to explain some clause in a contract of insurance is regular; but it can only be resorted to where the law is doubtful and unsettled; and even then the construction must be determined by the usage, and not by the opinions of the witnesses. Winthrop v. Union Ins. Co., 2 Wash., 7.

$120. The alleged custom, in Philadelphia, to strike off one-third of the gross freight for charges, and to pay two-thirds only to the assured, in a policy on freight, where a total loss has occurred, is unreasonable, and is in direct opposition to the terms of the policy. McGregor v. The Insurance Company of Philadelphia, 1 Wash., 39.

§ 121. Underwriters are bound to take notice of the course of trade; but it should appear that the course was so uniformly pursued as that it should have been known to the underwriters as well as to the insured. Martin v. The Delaware Ins. Co., 2 Wash., 254.

§ 122. Custom or usage cannot be resorted to to construe a contract susceptible of reasonable construction on its face. This rule is applicable to open or running policies of insurance; and where one of these policies requires that a vessel shall not be below a certain rate, “not below A 2," the party assured may establish the vessel's rate by any kind of evidence, and evidence of a usage among insurers and shippers that in such policies the rating was to be determined by the rating of the vessel on the books of the insurers is not admissible. Insurance Companies v. Wright, 1 Wall., 456.

§ 123. Plaintiff was appointed agent at C. for the defendant, and was to receive ten per cent. on the first premiums on policies procured by him, and five per cent. on renewal premiums as long as they continued in force. Having been discharged and thus deprived of the right of collecting the renewal premiums, he brought action for damages for breach of contract. Held, that for the purpose of explaining the above contract, evidence of a wellestablished custom among life insurance companies and their agents as to the kind and extent of the property that agents may possess in the lists of policies they procure was admissible. Ensworth v. New York Life Ins. Co., 1 Flip., 92.

§ 124. No evidence of any usage or custom can be admitted to explain, alter or impair the terms of a contract of insurance where such terms are clear and precise in themselves. Accordingly where the policy described the voyage to be made as "at and from Liverpool to port in Cuba, and at and thence to port of advice and discharge," and a deviation was made, held, that parol evidence showing that it was the custom and usage for vessels bound from Liverpool and back to discharge at one port and then proceed to a second port for a return cargo, was not admissible to avoid the effect of the deviation. Hearn v. New England Mutual Marine Ins. Co., 3 Cliff., 318; Hearn v. Equitable Safety Ins. Co., 3 Cliff., 328; Hearne v. Marine Ins. Co., 20 Wall., 488.

§ 125. A power evidenced by a usage must be considered as defined and limited by the usage. Hence it is doubtful, even if it appeared that a usage prevailed among the banks in the city, other than the defendant bank, for the cashiers to certify checks upon them, whether it could be regarded as evidence that the cashier of the defendant bank had any such authority unless it appeared that the defendant bank had in some way, directly or indirectly, sanctioned the usage. Merchants' National Bank v. State National Bank, 3 Cliff., 205.

§ 126. Customs unreasonable or unlawful invalid.—A usage for wharfingers to act as agents in accepting, on behalf of consignees, goods arriving at the several wharves would not be a reasonable or lawful usage. It would be inconsistent with the nature of the employment, and would lead to too much confusion of rights to be tolerated. The Ship Middlesex,* 11 Law Rep. (N. S.), 14.

§ 127. An illegal practice among officers of the government to accept bills drawn on them in their official capacity by army contractors can never ripen into a usage which will be binding upon the government, no matter how long continued or extensive. Peirce v. United States,* 1 Ct. Cl., 270.

§ 128. A custom to allow customers of a bank to overdraw is illegal and cannot be supported by any act or vote of the board of directors. A cashier allows overdrafts at his peril. Minor v. The Mechanics' Bank of Alexandria, 1 Pet., 46.

§ 129. When statute may be explained or repealed by. No usage or custom can prevail against an express law of the law-making power. Winter v. United States. Hemp., 344. § 130. Custom will not modify an act of congress. The Steamboat Forrester, Newb., 81.

§ 131. Legislative acts should be construed with reference to known usage. United States v. Bailey, 9 Pet., 238.

§ 132. Usage cannot alter the law, but it is evidence of construction given to law, and must be considered as binding on past transactions. United States v. Macdaniel, 7 Pet., 1.

§ 133. A general statute may be expounded, when its words are doubtful, by reference to any general usage with reference to which the law may be supposed to have been enacted. Love v. Hinckley, Abb. Adm., 436.

§ 134. It was not error for the court to instruct the jury that a will executed under Mexican laws in California, before the acquisition of California by the United States, in the presence of only two witnesses, affords no sufficient proof of the execution; but that if they should be satisfied from the proofs in the case that a uniform and notorious custom existed uninterruptedly for the space of ten years in California, which authorized the execution of wills in the presence of two witnesses only, and which custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, then the proof of such a custom and for such a length of time would operate as a repeal of the prior law, and that two witnesses would be sufficient. Adams v. Norris, 23 How., 353.

§ 135. Miscellaneous.— A bill of lading stipulated that the consignee should take the goods shipped as soon as the ship was ready to discharge. The ship arrived on Saturday and gave notice to the consignee that the goods would be discharged on Monday. The goods were placed upon the pier Monday morning, and, being left uncovered, were damaged by rain which fell in the afternoon. Held, that the fact that the consignee depended upon the general custom respecting permits from the customs department, believing that more time would be consumed after the vessel's arrival în preparing to deliver the goods than was actually necessary, did not excuse his delay in preparing to receive the goods, and that for that reason the loss was his own. The Kate, 12 Fed. R., 881.

§ 136. The existence of a custom under which purchasers of vessels previously enrolled and licensed have awaited the expiration of the time limited in the license before obtaining a renewal of the same would not relieve such vessels from liability to the penalty provided by the enrolling act. The Steamboat Forrester, Newb., 81.

§ 137. It seems that a local usage cannot vary a rule of navigation. Wheeler v. The Steamer Eastern State, 2 Curt., 141.

§ 138. The defendant offered to prove, by parol testimony, the general usage of the different departments of the government, in allowing commissions to the officers of the government upon disbursements of money under a special authority not connected with their regular official duties. The counsel of the United States objected to the admission of parol evidence to prove such usage, but the court permitted the evidence to be given. By the court: We see no grounds for objection against the usage offered to be proved, and the purpose for which it was so offered, as connected with the very terms upon which the defendant was employed to perform the services. It was not for the purpose of establishing the right, but to show the measure of compensation, and the manner in which it was to be paid. United States v. Fillebrown, 7 Pet., 28.

§ 139. Whenever a cause of injury to a cargo lies very near the line which separates excusable perils of the seas from dangers for which carriers are responsible, regard is to be had to the custom of the trade in determining whether it is to be classed with perils of the seas or not. Baxter v. Leland, Abb. Adm., 348.

§ 140. A vessel brought a cargo of fruit from Italy to New Orleans under a charter-party providing that she should be discharged with "customary dispatch." Held, that the use of the term "customary," as distinguished from the term "reasonable," enlarged the source of delay at the port of discharge, and made it include all those usages which the charterers could not control, such as the working hours, the order in which vessels must come up to the wharf, the observance of holidays, the allowance of three days to obtain berth, providing one could not be sooner obtained, but that it did not include any delay purely voluntary on the part of the charterers; that the charterers could not be allowed, notwithstanding opportunity, to decline to receive their fruit faster than they could sell it at the wharves, for the simple reason that it was more advantageous for them to do so, and that such was the custom of fruit dealers at that port. Lindsay v. Cusimano, 10 Fed. R., 302; 12 Fed. R., 503.

141. A schooner driven into harbor by a gale of wind anchored, but was driven from her moorings towards the flats until brought up by her small anchor, when she lay head to the wind. Remaining in this position during the night with no one on board she was run foul of by another vessel. Held, that the collision was caused by the neglect of the schooner, notwithstanding a local usage to leave vessels owned and manned by persors residing in that place anchored in the harbor with no one on board. The Schooner Lion, 1 Spr., 40.

§ 142. A contract was entered into at St. Louis by which the plaintiff agreed to ship the defendant five hundred tons of "No. 1 Shott's Scotch pig-iron" from Glascow "as soon as