ber to one of the commissioners; it was on a sleigh, covered by other timber, and could not be plainly seen, and the commissioner did not accept it; but defendant went to the other commissioners and said it had been accepted, and he also said that the party, whom it was agreed should fix the price, had fixed it at $60 per thousand. The commissioners then gave defendant an order for the price of said lumber, and the account was audited by the town board. The representations of the defendant were false. About a month after the lumber was delivered, the defects were discovered, and plaintiffs, as commissioners, bring this action to recover back the purchase price of said timber. There was judgment before the justice for the plaintiff. After the judgment was entered, it was altered by the justice.

Held, (1) That the plaintiffs could maintain the action. The audit of defendant's account by the town cannot impair the rights of the commissioners to recover back the money. The town had no right of action against defendant; the commissioners had; they alone could release or extinguish the right of action. (2) That when a judgment is altered, it remains and should be held to be for the amount for which it was originally entered. Judgment affirmed. Rose et al., Commissioners, v. Defue. Opinion by Mullin, P. J.

SALE.

Breach of warranty. This action was brought for breach of warranty in the sale of a farm. On the trial plaintiff proved that he applied to defendant to purchase a farm. Defendant said he had one to sell. Plaintiff asked him if it was free from daisies and foul weeds, and defendant said it was. Plaintiff said he would go and see the farm; that if there were any daisies on it he did not want it. Plaintiff visited the farm on two or three occasions after this interview and went over different parts of it, and on each occasion asked defendant the question whether there were daisies or foul weeds on the farm, and defendant each time said there were not.

Plaintiff swore he relied on these representations, and that the reason he asked the question as to daisies and weeds repeatedly "was to have it all right and certain." Plaintiff also swore that while on the farm he did not look for daisies; he did not think of them. He walked on different parts of the farm, but did not think to look for daisies. He also admits that he might have seen the daisies on the plowed ground had he thought to look for them. Evidence was given tending to corroborate plaintiff as to the representations made by defendant, and also to prove that at the season of the year plaintiff went on to the farm the daisies were not plainly visible; they were dried up and the cattle ate them at that season of the year. Defendant denied the making of the representation as to daisies and foul weeds on the farm, and also gave evidence tending to prove that the daisies were plainly visible and could be seen by any one. There was a judgment for the plaintiff for $200.

Held, (1) That had the plaintiff relied upon defendant's representations that the farm was free from daisies and foul weeds, he might be entitled to recover. But when he went on to the farm and had an opportunity to ascertain whether there were or were not daisies upon it, and did not give the slightest attention to them, he ought not to be permitted to recover, unless it be true the daisies could not then be seen by reason of the drought or having been eaten by the

cattle. (2) That the evidence in regard to the difficulty of ascertaining whether there were daisies on the farm, should not (taking into consideration plaintiff's admissions, etc.) be permitted to excuse the plaintiff from the duty to examine in order to discover whether there were or were not daisies upon the farm. Judgment reversed and new trial ordered. Vanderwalker

v. Osborn. Opinion by Mullin, P. J.

CONSTRUCTION OF A WILL.

On the 22d day of July, 1869, one B died possessed of certain real and personal property. He left him surviving a widow, a son, and two daughters. He left also a last will, which was dated May 22, 1858, in and by which he bequeathed to his wife "twenty shares of the stock of the N. Y. C. R. R. Co. at $100 per share," $2,000 in cash and some household furniture, etc., and the necessary rooms in the house and suitable and proper board and care with his son-in-law, C. A. Collor (to whom was left certain property), as long as she may choose, free from expense, all to be accepted in lieu of dower, etc., and was given her during her life. It was also provided that after the decease of said widow $1,000 of said railroad stock and $1,000 in cash were to belong to the son and remainder to testator's heirs. In the second clause said testator gave and devised to his son-in-law, C. A. Collor, a certain farm; said devise conditioned that said Collor should support and take care of testator and his wife during life. In the third clause, he gave to his daughter, Mrs. Collor, ten shares of the railroad stock of $100 per share, after the death of his wife. In the fourth clause he gave to his daughter, Sarah S. B., sixteen shares of C. R. R. Co.'s stock, at $100 per share, and $1,000 N. Y. C. R. R. bond, and at the decease of his wife $1,000 in cash. In the fifth clause he gave to his son, Charles C. B., $1,000 in cash, $1,000 in N. Y. C. R. R. stock, at $100 per share, at testator's decease, and at the decease of testator's said wife $1,000 in C. R. R. stock, and $1,000 in cash bequeathed to her. He also made his children residuary legatees of his said wife's estate. Lastly, he made his son his residuary legatee of his said estate, etc. By the first codicil to said will after mentioning the previous bequest of stock to Sarah S. B. and Charles C., which bequest said Charles was to take, on the death of the widow, testator's wife, that it is his will that said Sarah S. B., at my decease, shall have ten shares of N. Y. C. R. R. stock, at $100 per share, and my said son Charles C. B., at my decease, shall have $1,600 in N. Y. C. R. R. Co.'s stock, being sixteen shares," etc. By another codicil he gave to said Charles C. a mortgage he held against him instead of the sixteen shares of N. Y. C. R. R. stock mentioned in first codicil. In March, 1869, N. Y. C. R. R. Co. issued what was known as a scrip dividend of eight per cent on its capital stock for earnings of the road previously expended. Such scrip to be converted into stock at the option of the company. After the death of the testator the consolidated roads, the N. Y. C. & H. R. R. R. Co., to equalize valuation between them, issued to the stockholders of the N. Y. C. R. R. Co. certificates for the value of twenty-seven per cent of the N. Y. Central stock.

This action was brought for a construction of the will, and it was claimed that the testator's son-in-law had not provided for or supported said testator or his wife and that thereby said Collor had forfeited his estate in said farm. This action is brought by the executors as plaintiffs (said Charles C. being one). It was stipulated that said Charles C. should be considered

plaintiff in his individual, as well as his representative capacity.

Held, (1) That the executors were not entitled to call for a construction of the will as to the validity of the devise of the farm to Collor; they had no interest in it. (2) That the N. Y. C. R. R. Co. scrip dividend having been made before testator's death the scrip was part of the personal estate and there was no connection between the original stock and the scrip; they were separate and distinct obligations as against the company and the widows could not claim the scrip, it went to the residuary legatee. (3) That the widow was entitled to the 27 per cent consolidated scrip dividend as it was issued after the testator's death and she as owner of the stock took, although it was earned before testator's death. (4) That as the first clause of the will makes a final desposition of all the property bequeathed to the widow, viz., $1,000 in stock and $1,000 in cash to Charles C., and the remainder to testator's heirs, Mrs. Collor, Sophia S. and Charles C., the bequests in the fifth clause to Charles C., after the widow's death of $1,000 in stock and $1,000 in cash, is but a repetition of the like provisions in the first clause and are not cumulative, that by virtue of this bequest Charles will be entitled, on the death of the widow, to $1,000 cash and to ten shares of such stock of the par value of $1,000, or of the stock of the corporation formed by the consolidation. (5) That under the fourth clause of said will as modified by the first codicil of the testator at the time of his decease, was the owner of ten shares of N. Y. C. R. R. stock not otherwise bequeathed, then ten shares are payable to said Sarah S. from such stock. If not, the executors must purchase such stock and give it to said Sarah, or pay her the value of it in money. (6) That the bequest to said Sarah S. of $1,000 in bonds of the N. Y. C. R. R. Co., provided in the fourth clause of said will, is a general or demonstrative legacy and does not fail, though the testator had no such bonds at the time of his death. It was equivalent to a bequest of $1,000 in money.

The testator before his death purchased a house and lot after said will was made.

Held, that it did not pass to Charles C. as surplus. The surplus contemplated by the will was what should remain of the personal property after paying the debts and legacies specified in the will. Judgment affirmed. Brundage v. Brundage. Opinion by Mullin, P. J.

DIGEST OF ENGLISH LAW REPORTS FOR AUGUST.

BILL OF EXCHANGE.

Acceptance, what it admits: estoppel: unauthorized indorsement by one of two partners. - B, a member of the firm of W & B, attorneys and solicitors, drew and indorsed for value to the plaintiff in the partnership name, a bill of exchange payable to the order of W & B, which the defendant accepted without consideration. The indorsement was in respect of an entirely private matter of business between B and the plaintiff, unconnected with partnership purposes; B had no authority from W either to draw or indorse the bill. In an action by the indorsee against the acceptor, the defendant having traversed the indorsement:

Held, that the defendant was not estopped from showing that there had been no indorsement in fact by the firm. Garland v. Jacomb, L. R., 8 Ex. (Ex. Ch.) 216.

BOTTOMRY.

Communication with owner of cargo: bill of exchange given as collateral security. An American vessel laden with a cargo of timber, in the prosecution of a voyage, sustained damage, and was compelled to put into the Mauritius to repair and refit. She arrived there on the 11th of June, 1870, and her master, being without funds, placed the ship in the hands of H. & Co., a firm at the Mauritius, and they, before any attempt had been made to obtain money on the personal credit of the owners of the ship, who were affluent merchants in New York, proposed to advance money for the repairs on the master's draft on London, on his giving a bottomry bond on the ship, freight and cargo, as collateral security. The master and H. & Co., on the 29th of July, wrote to the owners of the ship, informing them of this proposal, and, on the same day, the master and H. & Co. wrote to the owners of the cargo, informing them that the vessel had sustained damage, and would have to undergo repair; but the letters to the owners of the cargo omitted all reference to the proposed loan on bottomry, and informed the owners of the cargo that they should hear further particulars by the next opportunity. The letters written by the master and H. & Co. to the owners of the ship were forwarded by the owners of the ship to the owners of the cargo; but the owners of the cargo did not receive these letters till the 8th of September, when it was too late for them to communicate with the master by post. On the 13th of October, after the repairs had been completed, the master gave bills and executed a bottomry bond on the ship, freight and cargo, according to the terms of the proposal made by H. & Co., which had long before been assented to by him. The bills were made payable to H. & Co., and were drawn on B. & Co., their agents in London, at ninety days sight. H. & Co. gave the master a memorandum, stating that the bills were taken as collateral security, and that the bond should be canceled on the prompt payment by the owners of the vessel to B. & Co. of the amount of the bills. On the 15th of October, the ship sailed from the Mauritius, and safely arrived at Liverpool, her port of discharge, on the 7th of February, 1871. After the ship had sailed, the owners of the cargo were, for the first time, informed by letter from H. & Co. that the bottomry bond had been given. The bond was transferred, and the bills of exchange were indorsed to B. & Co. Neither the master nor the owners of the vessel had any funds in the hands of B. & Co., and they neglected to provide funds to take up the bills, and informed B. & Co. that they had determined not to take up the bond. In a suit to enforce the bond against the ship, freight and cargo:

Held, that the bond was invalid as to the cargo, on the ground that there was not, under the circumstances of the case, such a communication with the owners of the cargo as to satisfy the law. Semble, that the bond was also invalid as to the cargo, upon the ground that the prospect of benefit to the cargo was not such as to justify the master in granting a bottomry bond upon the cargo. The Onward, L. R., 4 Adm. & Ecc. 38.

EVIDENCE.

Action under Lord Campbell's Act (9 & 10 Vict. c. 93): value of life of deceased: value of an annuity according to Carlisle tables: skilled witness. At the trial of an action under 9 & 10 Vict. c. 93, brought for the benefit of the mother, widow and children of R, claiming damages from the defendants for having by their negli

gence caused the death of R, it was proved that the deceased was under a covenant to pay his mother an annuity of £200 during their joint lives. A witness was then called for the plaintiff, who stated that he was an "accountant," and that he had personal experience as to the mode in which insurance business was conducted. He gave evidence, after referring to certain tables used by insurance offices called the "Carlisle tables," as to the average duration of life of two persons of the ages of the mother and son respectively, and as to the price for which an annuity for the mother's life could be bought. The admissibility of this evidence was objected to by the defendants, and was ruled to be admissible. In summing up, the learned judge directed the jury that they might, if they thought proper, calculate the mother's damages by ascertaining what was the sum which would purchase an annuity of £200 for a person of her age, according to the average duration of human life; and that in calculating the widow's and children's damages they might, if they thought proper, take as a guide the period of the probable duration of life of a person of the age of the deceased. On the argument of a bill of exceptions tendered to the ruling of the learned judge in admitting the evidence and to his direction to the jury:

Held, first (by Blackburn, Keating, Grove, and Archibald, JJ.), that the witness was competent to give evidence as to the probable duration of life and the price of the annuity, although not an actuary; and (Brett, J., dissenting) that the evidence was relevant and properly admitted. Secondly, by the whole court, that the direction to the jury as to the calculation of the mother's damages was wrong. By Blackburn, Keating, Grove, Archibald, and Honyman, JJ.: The direction was erroneous in not noticing the circumstances that the annuity of the mother was on the joint lives of herself and her son, and that it was only secured by the personal covenant of her son. By Honyman, J.: The direction was also erroneous in authorizing the jury to find the term for which an annuity is to be purchased, solely by reference to the average duration of life, without taking into account the state of health of the particular annuitant. By Brett, J.: The only legal direction to the jury would have been that they ought not to attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they considered, under all the circumstances, a fair compensation; and the direction was therefore erroneous, inasmuch as it left it open to the jury to give as damages the utmost amount which they might think was an equivalent for the pecuniary mischief done. Thirdly (by Blackburn, Keating, Grove, and Archibald, JJ., Brett, J., dissenting), that the direction as to the mode of calculating the damages recoverable by the widow and children might be construed as meaning that the probable duration of life of a person of the same age and in the same circumstances as the deceased, was an element to be taken into the calculation of the jury with the rest of the evidence, and being so construed was correct. Rowley v. London and Northwestern Railway Company, L. R., 8 Ex. (Ex. Ch.) 221.

NEGLIGENCE.

Proprietors of public carriage: evidence for jury.— A passenger in an omnibus was injured by a blow from the hoof of one of the horses, which had kicked through the front panel of the vehicle. There was no evidence on the part of the plaintiff that the horse was

a kicker; but it was proved that the panel bore marks of other kicks, and that no precaution had been taken, by the use of a kicking-strap or otherwise, against the possible consequence of a horse striking out, and no explanation was offered on the part of the defendants:

Held, that there was evidence of negligence proper to be submitted to a jury. Simpson v. London General Omnibus Company, L. R., 8 C. P. 390

SHIP.

General average: loss to cargo by water let into ship to extinguish fire: construction of bill of lading: average, if any, to be adjusted according to British custom." - Plaintiff shipped bark on board defendants' general ship, under à bill of lading, from Santa Martha to London, by which average, if any, was to be adjusted according to British custom. When the ship was about to sail a fire broke out in the forehold, and a hole was cut in the side of the ship, and her fore compartment being thereby filled with water, the fire was extinguished. If this course had not been adopted the cargo on board would in all probability have been destroyed, and the ship seriously damaged. The plaintiff's bark was destroyed by the water poured into the ship. In an action for general average contribution in respect of the destruction of plaintiff's bark, it was found, in addition to the above facts, that it is the practice of British average adjusters to treat a loss so caused as not a general average loss: –

Held (affirming the judgment of the queen's bench), that, whether or not the loss was, according to the general law of England, the subject of general average contribution, plaintiff, by the terms of the bill of lading, had made the admitted practice of British average adjusters part of the contract, and he was bound by it, even if different from British law. Stewart v. The West India and Pacific Steamship Company, L. R., 8 Q. B. (Ex. Ch.) 362.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.
ABATEMENT.

Where a debtor dies between the time of the serving of the rule to show cause and his adjudication as a bankrupt, the proceedings will be abated. Frazier & Fry v. McDonald, U. S. Dist. Ct., W. D. Penn., 8 N. B. R. 238.

COMPROMISE.

Secret agreement. - Where all the creditors had compromised by taking notes at six months for seventy per cent, and the last creditor had made it a secret condition of his acceptance of the notes that the debtor should immediately discount the compromise notes at fifty per cent cash, which was accordingly done. Held, that the assignee was entitled to recover the amount so paid. Bean v. Amsink, U. S. Dist. Ct., S. D. N. Y., 8 N. B. R. 228.

CONFUSION OF GOODS.

1. Where a bailee, prior to his bankruptcy, mixes the property bailed (wheat), with his own, so that the identical property cannot be distinguished, the bailor can only prove as a general creditor and share pro rata against the estate in bankruptcy. Adams v. Meyers, assignee, U. S. Dist. Ct., Oregon, 8 N. B. R. 214.

2. Where the district court, on objection of the assignee, rejects a proof of debt,

Ordered, the creditor should establish his claim by suit against the assignee. Ib.

INSURANCE COMPANY.

1. A receiver of a corporation, duly appointed, on its dissolution, by the law of the place where the corporation was created, will be recognized as a proper representative of such corporation in bankruptcy, and as such allowed to prove all claims due to the corporation he represents. In re Republican Insurance Company, U. S. Dist. Ct., N. D. Ill., 8 N. B. R. 197.

2. Where an insurance company fails to object to a matter of form in the proof of a loss until it is too late to remedy it, it will be estopped from setting up this defect. Ib.

3. The proper construction of the words, "loss, if any, payable at the same time and pro rata with the insured," occurring in a policy of re-insurance issued by one insurance company to another, is that the first company shall pay the amounts the second is liable for, not the amounts it actually pays. Ib.

4. In this case the first insurers only paid eighty-five cents on the dollar of their liability; yet the court held the receiver of that company properly proved his debt against the estate of the company re-insuring, for the full amount of their liability. Ib.

JURISDICTION.

1. District courts of the United States have jurisdiction, by reason of the subject-matter, over all proceedings in bankruptcy, and over all actions brought by assignees in bankrupty, even though such actions be not brought in the district where the proceedings are pending. The jurisdiction of the district court is not exclusive. Payson, assignee, v. Dietz, U. S. C. C., Iowa, 8 N. B. R. 193.

2. State courts may entertain suits by an assignee in bankruptcy where he resorts to said courts by the consent and concurience of the bankruptcy court. Ib. 3. The jurisdiction conferred on the circuit courts of the United States by section 2 of the bankrupt act is supplementary to, and not exclusive of, the jurisdiction conferred by the judiciary act. Ib.

4. Where an assignee in bankruptcy would be entitled to sue a defendant in the circuit court of the United States by the provisions of the judiciary act, his being an assignee in bankruptcy does not restrict his application to the circuit court to those cases prescribed by the bankrupt act. Ib.

SHERIFF'S FEES.

1. A sheriff is entitled to the expenses incurred by him in keeping property of a bankrupt from the time of filing the petition until taken possession of by an assignee in bankruptcy, where seized by him prior to the commencement of proceedings in bankruptcy, on an attachment on mesne process, which by said proceedings became, and was in law, dissolved. Zeiber v. Hill, U. S. Dist. Ct., Oregon, 8 N. B. R. 239. 2. For the cost of the attachment proceedings, outside of that expended in the protection and care of the property delivered to the assignee, the sheriff can only recover of the party employing him. Ib.

STOCKHOLDER.

1. Waiver. This was a suit brought by an assignee in bankruptcy against a stockholder of an insolvent insurance company to recover his unpaid subscription, he claiming not to be liable therefor because he had not caused his stock to be transferred on the books of the company.

Held, a provision in the by-laws of a corporation requiring transfer to be made upon the books may be waived by the company, and if waived at the request of a purchaser of stock, or with his consent, he becomes directly liable for future assessments. Upton, assignee, v. Burnham. U. S. Dist. Ct., N. D. Ill., 8 N. B. R. 221.

2. The entry of his name upon the stock book as a stockholder may be sufficient to give him the position of a legal stockholder. Ib.

VOID TRANSFER.

1. A transfer of property that would be void against creditors, irrespective of the bankrupt act, may be set aside by the assignee in bankruptcy, though made more than six months prior to the commencement of proceedings in bankruptcy. Hyde, assignee, v. Sontag and Eldridge, U. S. Dist. Ct., Cal., 8 N. B. R. 225.

2. The limitation of six months refers only to those transfers which are rendered void by the bankrupt act alone. Ib.

3. Where the act is relied upon to render the transfer void, the condition of the act (the commencement of proceedings within six months) must be complied with. Ib.

4. A deed of trust made by a bankrupt, more than four months prior to the commencement of proceedings in bankruptcy, which, by the law of the State where made, is valid between the grantor and grantee and against subsequent purchasers with actual notice, without being recorded, cannot be avoided by the assignee in bankruptcy, under section 35, because not recorded until within four months prior to the commencement of the proceedings in bankruptcy. Seaver v. Spink, assignee, Sup. Ct., Ill., 8 N. B. R. 218.

5. Aliter, if by the law of the State where executed the recording is a condition precedent to its validity. Ib.

6. A mortgage void on its face as to creditors may be set aside by the assignee in bankruptcy, though made more than four months prior, etc. Ib.

MARINE INSURANCE.

The court of exchequer chamber has declined to commit itself to any opinion on the very important and interesting question of marine-insurance law which came before it in the case of Stewart v. The West India and Pacific Steamship Company, 28 L. T. R. N. S. 743, viz., whether the destruction of merchandise by water thrown upon it, in the course of extinguishing a fire which is burning other merchandise in the same ship, is the subject of a general average contribution. It has been the acknowledged custom of English average staters, up to the present time, to treat a loss so occasioned as not the subject of a general average contribution; but all the text writers on the subject have condemned the custom as at variance with principle. The court of queen's bench, following and approving the American case of Nimick & Co. v. Holmes, 25 Penn. St. 36, expressed an unanimous opinion (not necessary, however, to the decision of the case) that a loss of this kind was the subject of general average, as it is a voluntary and intentional sacrifice, made under the pressure of imminent danger, and for the benefit and with a view to secure the safety of the whole adventure at risk. In the American case referred to, Mr. Justice Lowrie had mentioned three things as the elements of

general average, "a purpose, a means, and a result; a design to avert a common danger by a sacrifice voluntarily made, and a successful issue;" adding that "the first and last are perfectly definite in their character, while the means must always remain to be defined by the rule of prudence when the danger arises." It was thought that the unanimous expression of opinion by the court of queen's bench in this case would prove conclusive as to the law of the matter for the future, and that average adjusters would henceforth feel bound to bring their practice into harmony with well-established principle; but we fear that this expectation must now be laid aside, owing to the terms in which the court of exchequer chamber have declined to express any opinion on the question. "If it was necessary," said the court, "in this case to determine whether the destruction of merchandise by water thrown upon it, in the course of throwing water to extinguish a fire which is burning other merchandise in the same ship, is the subject of general average, we should desire time to consider a question which is no doubt of great importance, and upon which we know of no direct authority in the law of this country." This is an instance of that often observed characteristic of our judicial decisions, namely, their slavish adherence to the facts of the particular case before the court, and the dread which seems ever apparent of laying down any broader principle than is absolutely necessary to meet those facts. The judgment of the court of queen's bench presented an exception to the general rule, but the court of exchequer chamber has reverted to the usual timid style of decision. However, the unanimous opinion of the Lord Chief Justice Cockburn, and Justices Mellor, Hannen, and Quain, though not essential to the decision of the case before them, must still carry considerable weight. Law Times.

EVIDENCE OF TRADE USAGE.

The doctrine by which parol evidence of usage is admissible, where there is a written contract, is plainly, in many cases, a deviation from the well-established rule of jurisprudence, which declares that, where the parties have set down in writing the terms of the contract between them, the writing alone can be the evidence of what that contract is. It is obvious that this rule is a sound one, for it is manifestly desirable, and for the interest of contracting parties, that the terms of a contract should be reduced to writing, inasmuch as all doubts and difficulties arising from the fallibility of human memory, and from dishonesty, and very much misunderstanding and uncertainty are thereby prevented; and it is likewise obvious that if, when a written contract exists, parol evidence were admissible, the result would constantly be that there might as well have never been a written contract at all. The difficulty is, however, that all general rules of law aiming at consequences generally beneficial are constantly producing results which in the particular instance amount to great injustice. Hence exceptions have a tendency to spring up with regard to matters in respect of which experience shows that the working of the general rule has frequently caused injustice in the particular instance. The scope of the application of these exceptions is continually enlarged. A series of decisions occurs, of which each one seems naturally, and almost inevitably, to follow from its predecessor, but which, nevertheless, when considered as a whole, suggest a doubt whether the course of the law would have been

the same if the ultimate result could have been foreseen by those whose judicial decisions first established the exception.

The principle upon which evidence of usage was originally admitted to qualify written contracts was, that where there was a custom of a particular locality so nearly universal, with respect to contracts of a particular kind, as to make it only reasonable to suppose that the contracting parties must have contemplated and contracted with reference to it, then it must be presumed that such custom was intended to form part of the contract, though the writing was silent as to it, and that the parties did not mention it only because it was deemed superflous to refer to any thing so well established and so much a matter of course as forming part of all similar contracts. So, also, where a particular word has acquired an artificial meaning from long custom in a particular trade, it has been held that parties belonging to such trade, and contracting with reference thereto, must be taken to have meant to use the word, not in the ordinary sense in which any person unacquainted with the trade would use it, but in the sense in which, if talking by word of mouth on trade matters, they would use it-viz., in its artificial sense. This last case does not seem so strong as the former one; words are after all merely counters to represent things, and their meaning is only acquired by concensus; consequently it does not seem to be stretching the rule of law with respect to written documents to a very great extent to inquire into the sense in which the parties used a particular word, by reference to the general use of the word in the trade which they were carrying on. But, nevertheless, in this, as in other cases of infringement of a general rule, difficulties of all sorts immediately follow, and what may be called line cases arise. The doctrine laid down as a guide to regulate the admissibility of the evidence of usage is, that it may add to or explain the writing, but cannot vary or contradict it. It seems doubtful whether this can be regarded as a perfectly accurate expression of the rule to be deduced from the cases on the subject. It is clear that the contract must always be different in its effect after the parol evidence has been received, for otherwise the parol evidence would not be necessary. In cases where there are ordinary and special meanings attached to a word, which are not antagonistic, though somewhat different, it seems clear that the parol evidence of the sense in which the word is used in reference to a particular trade or business is admissible; but if such a decision as that in which a "thousand" has been held by the usage of a particular trade to mean twelve hundred can be regarded as correct, it is clear that the rule above referred to is inaccurately expressed. For the ordinary meaning of the word "thousand" clearly does not indicate twelve hundred, and when the parol evidence is said to contradict the contract, it must be meant that it contradicts the ordinary meaning of the words used. It is impossible, however, in a short space, to discuss the very important question in what terms the rule governing the admissibility of this class of evidence may be most accurately and exactly expressed. Many of the recent decisions with regard to stock-broking contracts, and the liability of agents as principals in cases where they appear on the face of the contract to be merely agents, seem to stretch the ancient formula to its very utmost limits.

What we desire to call attention to is the contrast between the notion by which the admissibility of this