complainant; and, if such a defective record were allowed to remain, and to support a judgment, it might become a precedent: that which was in truth an excess of jurisdiction might be considered to have been held to be legal. But this principle has no application to the county courts: the proceedings there do not show the matter in any formal way; the excess of jurisdiction may depend only on the defence set up orally by the defendant, and may only appear in the course of the trial; and judgment may follow almost as soon as the defence is understood. Under such circumstances, there would be no opportunity of moving for a prohibition before judgment; and, unless the motion was allowed after judgment, the excess of jurisdiction would be without redress.

*In Jones v. Owen, 5 D. & L. 669, Patteson, J., issued a pro*702] hibition to the county court after judgment, for defect not appearing in the written proceedings. So also did this Court in Thompson v. Ingham, 14 Q. B. 710 (E. C. L. R. vol. 68).

Upon these authorities and principles, we think this rule should be discharged, and the prohibition should issue. Rule discharged.(a)

(a) As to the question, at how early a stage prohibition to a county court may be applied for, see Sewell v. Jones, 1 L. M. & P. 525.

END OF EASTER VACATION.

CASES

ARGUED AND DETERMINED

IN

THE QUEEN'S BENCH,

IN

Crinity Cerm,

XVII. VICTORIA. 1954.

The Judges who usually sat in Banc in this Term were:

Lord CAMPBELL, C. J.

COLERIDGE, J.

ERLE, J.
CROMPTON, J.

DANIEL BROWN v. ANDREW EWING BYRNE. May 28.

A bill of lading expressed that goods, shipped at N., were deliverable at L., to order of assigns, "he or they paying freight for the said goods five-eighths of a penny sterling per pound, with five per cent. primage, and average accustomed." By the usual custom, in the trade at L., three months' interest or discount is deducted from freights, payable under bills of lading, on goods coming from certain ports, including N. The assignee of this bill of lading having received the goods, the shipowner claimed the freight without any deduction, contending that the custom was not binding in law as contradicting the written contract. The assignee paid the freight, less the discount. On a case stating the above facts,

Held, that the custom was binding, and controlled the bill of lading.

A WRIT having been issued in this case, the parties, without pleadings, by consent and the order of a Judge, stated for the opinion of this Court the following case.

*The plaintiff is a shipowner in Liverpool. The defendant is [*704 a merchant there, carrying on business under the firm of A. E. Byrne & Co. On the 5th October, 1853, Messrs. J. B. Byrne & Co., of New Orleans, shipped on board the ship Courier, a vessel belonging to the plaintiff, 110 bales of cotton, for which the master signed a bill of lading, of which the following is a copy.

"Shipped in good order and well conditioned, by J. B. Byrne & Co., on board the ship called the Courier, whereof Gemmill is master, now lying at the port of New Orleans, and bound for Liverpool, to say, one

hundred and ten bales cotton, being marked and numbered as in the margin, and are to be delivered in the like order and condition at the aforesaid port of Liverpool (the dangers of the sea only excepted) unto order or to assigns, he or they paying freight for the said goods fiveeighths of a penny sterling per pound, with 5 per cent. primage, and average accustomed. In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date; one of which being accomplished the others to stand void. Dated in New Orleans, the 5th day of October, 1853. JOHN GEMMILL."

This bill of lading was forwarded to the defendant, endorsed to him. On the arrival of the vessel at Liverpool, in February last, the defendant claimed and received the 110 bales of cotton, as endorsee and holder of the said bill of lading. On the cargo being delivered, the following debit note was rendered to the defendant for the freight.

"Messrs. A. E. Byrne & Co.

For freight per said vessel from New Orleans on 110 Bales Cotton weighing 53,209 lbs. @ 5/8

138 11 3

6 18 7

£145 9 10"

*The defendant has offered to pay 1437. 138. 7d. on account *705] of this freight: but he refuses to pay the balance, 11. 16s. 3d., on the ground that, by the custom of Liverpool, he is entitled to a deduction of three months' discount from the freight.

It is admitted that, according to the usual custom prevailing amongst merchants and shipowners in Liverpool, three months' interest or discount is deducted from freights payable under bills of lading, on goods coming from certain ports in the Southern states of America, viz., New Orleans, Mobile, Charleston, and Savannah, whether such freights are paid by the shippers, the consignees named in the bill of lading, or by the assignees of the bill of lading. The custom does not entitle the merchant to three months' or any credit for freights, which are always due on delivery; nor does it extend to the Northern American ports, or to Apalachicola in the South; freights from those ports being always payable in cash without any deduction. The plaintiff contends that the custom is not good in law, being inconsistent with the written document. The Court is to be at liberty to draw any inference of fact which a jury might draw.

The questions for the Court are: Whether the custom to deduct three months' discount from freights is good in law; and Whether the plaintiff is, under the circumstances of the case, entitled to recover the said sum of 17. 16s. 3d. from the defendant.

The case was argued in Easter Vacation. (a)

*706]

Mellish, for the plaintiff.-There are two questions *involved: First, whether the custom is admissible, to give a construction (a) On Friday, May 11th. Before Coleridge, Wightman, Erle, and Crompton, Js.

to the bill of lading, as between the parties to that written instrument; Second, supposing that the custom is not admissible, as between the parties to the instrument, whether it is admissible between the shipowner and the defendant who is an assignee of the bill of lading. As to the first. There is no difference, in this respect, between a bill of lading and any other written contract. Evidence is always admissible to interpret the words used in a writing, and to show that, by custom, these words have acquired an artificial sense. It is also admissible to annex incidents as to which the contract is silent; but the incidents thus annexed must not be inconsistent with what is expressed. Confusion often arises from not distinguishing between these two rules. In the present case it is clear that it is not sought to translate words used in an artificial sense. It is not alleged that either of the words "paying" or "freight" has by custom acquired in Liverpool a peculiar sense; for these words, when used in bills of lading from other ports to Liverpool, have their ordinary meaning. It is therefore an attempt to say that, in this particular trade, a written contract to pay 1457. 98. 10d. for the carriage of 110 bales of cotton shall, by custom, bind the party to pay 1431. 138. 7d., and no more. Such a custom directly contradicts. the written contract. In the note (a) to Wigglesworth v. Dallison, 1 Doug. 201, the rule is thus laid down by the late Mr. Smith. "However, evidence of usage, though sometimes admissible to add to, or explain, is never so to vary, or to contradict either *expressly or [*707 by implication, the terms of a written instrument." [ERLE, J.Do you make a distinction between a written contract, and one expressed in the same words, but verbal?] Evidence might be received to explain a verbal contract, but not a written one. The last editors of Smith's Leading Cases add: "Evidence of previous usage between the parties to a contract may be admitted with the same effect, but subject to the same restrictions, as a general usage of trade." Evidence of an usage, between the parties, to give credit, was excluded in Ford v. Yates, 2 M. & G. 549 (E. C. L. R. vol. 40), because it contradicted the written contract. [WIGHTMAN, J.-In Syers v. Jonas, 2 Exch. 141, at the trial, I rejected evidence of a custom that all sales in the tobacco trade at Liverpool were by sample, on the ground that it varied the written contract which was silent as to any sample. The Court of Exchequer decided that I was wrong.]. That decision has been much questioned in Spartali v. Benecke, 10 Com. B. 212, 226 (E. C. L. R. vol. 70). In that latter case the contract in writing was for a sale of goods "to be paid for by cash in one month, less 5l. per cent. discount." The Court of Common Pleas held that this implied a sale on credit, and an immediate delivery, and that evidence of a custom that buyers had an option to take delivery at any time till the expiration of the period named in the contract, but must pay the price

(a) 1 Smith's L. C. 305, 309.

on delivery, was inconsistent with the writing, and was inadmissible. The principle is laid down in Blackett v. Royal Exchange Assurance Company, 2 C. & J. 244, 249,† by Lord Lyndhurst: "Usage may be admissible to explain what is doubtful, it is never admissible to contradict *what is plain." If the custom be admissible to show that *708] "paying freight for the said goods five-eighths of a penny sterling per pound" means paying less than than five-eighths of a penny, it seems impossible to exclude custom in any case. [CROMPTON, J.— Suppose that there was a customary allowance in estimating the weight of the pound. That would affect the sum to be paid. In Bold v. Rayner, 1 M. & W. 343,† the bought note was for 100 tons of palm oil to be taken from the quay at landing weights, with customary allowances." The sold note was simply for 100 tons. At the trial, Parke, B., admitted evidence that there was a custom that palm oil was to be taken from the quay at landing weights, with certain known customary allowances; and he ruled that, this custom being incorporated in the written contract, there was no variance between the bought and sold notes.] It might be there admissible as showing that ton does not mean twenty hundredweight, as in Smith v. Wilson, 3 B. & Ad. 728 (E. C. L. R. vol. 23), where 1000 rabbits was shown to mean six score. It is a case of the translation of a word used in an artificial sense. In Trueman v. Loder, 11 A. & E. 589 (E. C. L. R. vol. 39), Lord Denman, after remarking on the inconvenience of admitting customs, says: (a) "Evidence of the prevailing custom is supposed to show that both parties had in their contemplation more than appears in the writing; but supposing them both to have not only contemplated, but distinctly expressed, in the plainest words, that they considered their contract to include a provision not to be found in the paper, still the evidence cannot be introduced into the cause. Custom of trade has been supposed to form a virtual exception to this well known rule; but the cases go no *farther than to permit the explanation of words *709] used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract." Then, as to the second point, the promise to be inferred from the taking of the goods without payment is, to pay the full amount for which the holder had a lien; and, that being so, the assignee has promised to pay according to the original contract; and there is no difference between the liability of an assignee and that of a party to the bill of lading.

Blackburn, contrà.-Perhaps it is not possible to reconcile all the cases on this subject, or to lay down accurately the limits to the admissibility of custom. But the cases agree in laying down limits which certainly include this case. It may be convenient first to answer a question, put from the Bench, as to whether there is a distinction between written and verbal contracts. There is a difference; but in this respect (a) 11 A. & E. 598.