acted on their bargain in a sense different from that which the words themselves convey. I am of opinion that if this could be truly asserted it is nothing to the purpose. The words of a written instrument must be construed according to their natural meaning, and it appears to me that no amount of acting by the parties can alter or qualify words which are plain and unambiguous."—North Eastern Railway v. Lord Hastings, [1900] A. C. 260, at p. 263; 69 L. J. Ch. 516, at p. 518, Earl of Halsbury, L. C.

Limitations by Deed of Settlement.

"There is a distinction between limitations by settlement and limitations by will; in the latter case they are construed according to the intention of the testator, and then the trustees, under a limitation of this sort, might be considered as having an estate commensurate with the subsequent limitations; but that mode of construction cannot be applied to a limitation by settlement."— Blaker v. Anscombe (1804), 1 Bos. & Pul. N. R. 25, at p. 27, Heath, J.

"This question arises on the construction of a deed, but the authorities show conclusively that the same principles apply in construing a deed and in construing a will. In Cole v. Sewell (1843), 4 Dr. & War. 1, at p. 33, Lord St. Leonards says: 'It has been insisted that Doe v. Wainwright (1793), 5 T. R. 427, is not an authority to rule this case, and that it has not been acted on with respect to deeds: but I cannot agree with this position, for I have always thought that the judges in that case only applied to deeds that sound and sensible construction, which had previously been confined to wills.'"-In re Friend's Settlement, [1906] 1 Ch. 47, at p. 52; 75 L. J. Ch. 14, at p. 17, Farwell, J.

Part V. MERCANTILE INSTRUMENTS.

Generally

Bill of Lading

Charterparty

Writing and print

Memorandum of Association

Policy of Insurance

Warranty in a Policy

Rules for ascertaining amount of a Loss under a Policy

PAGE

200

206

208

209

209

210

211

211

Generally.

General Principles.

...

"Thus the matter stood till within these thirty years. From that time (Lord Hardwicke's) we all know the great study has been to find out some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration at the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case on this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country."-Lickbarrow v. Mason (1787), 2 T. R. 63, at p. 73, Buller, J.

Definition of Mercantile Transactions.

"A contrary holding would necessitate a definition of 'mercantile or commercial transactions'-a task of no small difficulty, unless I adopted the plaintiff's suggestion that all contracts for sale of goods and chattels, including patents, are mercantile transactions.”—Bruner v. Moore, [1904] 1 Ch. 305, at p. 311; 73 L. J. Ch. 377, at p. 380, Farwell, J.

There is no difference of interpretation between mercantile contracts and other instruments.

"The first observation which I wish to make is that, so far as I know there is in law no difference of construction between

mercantile contracts and other instruments. The grammatical meaning is, as in other cases, the meaning to be adopted unless there be reason to the contrary."-Southwell v. Bowditch (1876), 1 C. P. D. 374, at p. 376; 45 L. J. C. P. 630, at p. 631, Jessel, M. R.

The whole instrument and subject-matter are to be looked at.

"In looking at a document between business men I do not think it wise to look at technical rules of construction. I think it is well to look at the whole document, to look at the subject-matter with which the parties are dealing, and then to take the words in their natural and ordinary meaning and construe the document in that way."-Tatham, Bromage & Co. v. Burr, [1898] A. C. 382, at p. 386; 67 L. J. P. 61, at p. 63, Earl of Halsbury, L. C.

Mercantile contracts should have a liberal interpretation.

"Like all mercantile contracts it [a charter-party] ought to have a liberal interpretation."-Hotham v. East India Company (1779), 1 Doug. 272, at p. 277, Lord Mansfield, C. J.

Uniformity of interpretation should prevail in this country and its dependencies.

"We feel that it is extremely desirable that the law regulating the construction of mercantile contracts and the remedies for breach of them should, as much as possible, proceed on the same principle in all parts of the world, and especially that this uniformity should prevail in respect of this country and its dependencies.' Dimech v. Corlett (1858), 12 Moore, P. C. C. 199, at p. 229, Sir J. T. Coleridge, delivering the judgment of the Judicial Committee.

(See also The City of Chester (1884), 9 P. D. 182, ante, p. 43.)

Evidence of Customs and Usages.

Evidence of known customs and usages is admissible to annex incidents to mercantile instruments in matters with respect to

which they are silent, provided such evidence is not repugnant, or inconsistent with such instruments.

"It has long been settled that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent."-Hutton v. Warren (1836), 1 M. & W. 466, at p. 475; 5 L. J. (N. S.) Ex. 234, at p. 236, Parke, B., delivering the judgment of the Court (cited by Blackburn, J., in Myers v. Sarl (1860), 30 L. J. Q. B. 9, at p. 12).

"If a legislator were called to consider the expediency of passing a law upon this subject, the conclusion at which he would arrive is hardly open to a doubt. He would decide at once that the written contract must speak for itself on all occasions; that nothing should be left to memory or speculation. There is no inconvenience in requiring parties making written contracts to write the whole of their contracts; while, in mercantile affairs, no mischief can be greater than the uncertainty produced by permitting verbal statements to vary bargains committed to writing. But the nature of this explanatory evidence renders it peculiarly dangerous. Those who have heard it must have been struck with the hesitating strain in which it is given by men of business, and their wish to secure the correctness of their answer by referring to the written document. Again, what can be more difficult than to ascertain, as a matter of fact, such a prevalence of what is called a custom in trade as to justify a verdict that it forms a part of every contract ? Debate may also be fairly raised as to the right of binding strangers by customs probably unknown to them; a conflict may exist between the customs of two different places; and supposing all these difficulties removed, and the custom fully proved, still it will almost always remain doubtful whether the parties to the individual contract really meant that it should include the custom."-Trueman v. Loder (1840), 11 A. & E. 589, at pp. 597, 598, Lord Denman, C. J.

"Upon the first point [the admissibility of the evidence given. at the trial] we take the acknowledged distinction to be this: if the evidence offered at the trial, by either party, is evidence by

law admissible for the determination of the question before a jury, the judge is bound to lay it before them, and to call upon them to decide upon the effect of such evidence; but, whether such evidence when offered is of that character and description which makes it admissible by law, is a question which is for the determination of the judge alone, and is left solely to his decision. On the present occasion the question was, whether there was a recognised practice and usage, with reference to the voyage and business out of which the written contract, the subject-matter of the action, arose, and to which it related, which gave a particular sense to the words employed in it, so that the parties might be supposed to have used those words in such sense. The character and description of the evidence admissible for that purpose, is the fact of a general usage and practice prevailing in the particular trade or business, not the judgment and opinion of the witnesses; for the contract may be safely and correctly interpreted by reference to the fact of usage, as it may be presumed that such fact is known to the contracting parties, and that they contract in conformity thereto; but the judgment or opinion of witnesses called affords no safe guide for interpretation, as such judgment or opinion is confined to their own knowledge." --Lewis v. Marshall (1844), 7 M. & Gr. 729, at pp. 743, 744; 13 L. J. C. P. 193, at p. 195, Tindal, C. J.

"The custom of trade, which is a matter of evidence, may be used to annex incidents to all written contracts, commercial or agricultural, and others, which do not by their terms exclude it, upon the presumption that the parties have contracted with reference to such usage, if it is applicable.”—Gibson v. Small (1853), 4 H. L. Cas. 353, at p. 397, Parke, B.

"Mercantile contracts are very commonly framed in a language peculiar to merchants: the intention of the parties, though perfectly well known to themselves, would often be defeated if this language were strictly construed according to its ordinary import in the world at large; evidence, therefore, of mercantile custom and usage is admitted in order to expound it and arrive at its true meaning. Again, in all contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify these known usages, which are included however, as of course, by mutual understanding: evidence therefore of such incidents is receivable. The contract in truth is partly express