"1. Application for sacks to be made to the clerk in charge of the station where the sacks will be put on the rail when filled, who will forward them to the sack contractor's office, Boston.

2. The charges for the use of sacks will continue as formerly, viz. d. per sack per journey when discharged at any of the company's stations on the company's line, or at their warehouses, or at warehouses or mills connected by rail with the company's line; and 1d. per sack when sent to foreign stations. The district where the d. charge is in force comprises all places north of Doncaster.

"3. Demurrage of ad per sack per week will be charged after the expiration of fourteen days; the hire to commence from the time the sacks leave the station to be filled; and that the time to be allowed for filling and returning to the station be seven days.

4. None of the company's sacks must be allowed to leave the station for the purpose of being filled, unless a deposit equal to the value is left with the clerk in charge, or the signature of well known and respectable parties obtained for their immediate and safe return according to the third regulation.

*347] *5. The first hiring to be pre-paid; and, when the sacks leave a station for the purpose of being filled with corn to be sent by railway, they must in all cases be returned to the stations from which they are delivered to the sender for that purpose, in accordance with rule 1.

"Parts of a week to be charged as a week.

"7. In all cases, foreign stations are required to return Great Northern sacks directly; and they must be addressed to the sack depôt at Boston, and not to the station from which sent.

8. No Great Northern sacks must be reconsigned from a foreign station to any other station, but immediately returned to the sack depôt at Boston, according to rule 7.

9. It is arranged, that, in all cases, sacks will be supplied direct from the depôt at Boston; and it is therefore required that sacks, if received at any of the stations, be sent to Boston, and not re-issued, unless by special order or permission obtained from the contractor's office, Boston.

"10. None of the company's sacks containing grain will be allowed to leave any station (local or foreign), unless a guarantee is first obtained by the clerk in charge, from the consignee, that the grain will be immediately discharged, and the sacks returned the same day, and to the same station.

"If under any circumstances, this rule is disregarded, the clerk in charge is required to make a special report to the sack contractor at Boston, who reserves to himself the right of refusing any party the same privilege on a second application.

11. The contractor engages to supply stations applying for sacks not later than thirty-six hours after the application is received.

12. A complete debtor and creditor account must be kept at every station where sacks are supplied to the *public, and when they [*348 are received with grain in them. This account must show how and when all sacks are received, and how disposed of, so that the state of the stock can be at all times ascertained by reference thereto. (Signed.) SEYMOUR CLARKE.

"General Manager's Office, King's Cross, 1853."

It was admitted that the defendants knew of these regulations: and it was proved that the company had never been in the habit of enforcing the 10th article of the regulations, by requiring a guarantee.

Similar regulations were issued by the company in 1854: and, on the 1st of January, 1854, the several companies interested (the Great Northern included) made a general regulation which contained, amongst others, the following provisions:

“5. The time allowed for filling and returning the sack by senders to the forwarding station with a forward consignment note is four days, after which demurrage at d. per sack per week will be charged to sender.

6. The time allowed to consignee is fourteen days from date of invoice from the forwarding station; and, if he is allowed to remove the sacks from the receiving station, he must return them to the same station within the time stated above, or demurrage at d. per sack per week will be charged to consignee."

On the part of the plaintiffs, it was objected that these latter regulations were not admissible.

The second item in the particulars, for 17. 158. 6d., in respect of which the defendants had paid that sum into court, was claimed as demurrage of sacks where the defendants were themselves both consignors and consignees.

A number of accounts were put in, in which demurrage was claimed by the plaintiffs in cases where the sacks had been obtained by the defendants, but consigned to third persons: but there was no charge made against the defendants in any of them for demurrage, except in cases where they were consignees and the main contention [*349 between the parties was, whether the demurrage was payable by the consignors of the corn, who obtained the sacks for the company, or by the consignees,-the plaintiffs insisting that it was payable by the consignors, the defendants that it was chargeable only to the consignees.

At the suggestion of the learned judge, a verdict was entered for the plaintiffs for 87. 18. 5d., the amount of the first item, subject to a motion to enter the verdict for the defendants if the court should be of opinion that their construction of the regulations was the correct one,-the court to have power to draw any inference of fact as a jury, if they

should think any question of fact ought to have been left to the jury; and also whether the rules of 1855 were admissible. If the defendants were held liable, the amount of their liability to be ascertained by a reference.

Manisty, accordingly, in Hilary Term last, obtained a rule calling. upon the plaintiffs to show cause why a verdict should not be entered for the defendants, on the ground that there was no evidence of any contract by the defendants to pay the demurrage in question, or upon the ground that the weight of evidence was in favour of the defendants, and showed that the consignees and not the consignors of the sacks were the parties liable to pay the demurrage sought to be recovered.

Pigott, Serjt., and H. James, in the course of the same term, showed cause.-There was abundant evidence of a contract on the part of the defendants with the company to pay the demurrage in question. It was admitted that the defendants knew of the regulations, and that the sacks were originally hired by them, and filled with grain forwarded by them along the plaintiffs' line, and thence on to foreign lines. By the 2d article of the regulations of 1853, the hirer is to be charged *350] d. or 1d. per sack per journey, according as the sacks are sent to a station upon the company's own line or to a foreign station, or a place off their line. By the 3d article it is provided that "demurrage of d. per sack per week will be charged after the expiration of fourteen days; the hire to commence from the time the sacks leave the station to be filled; and that the time to be allowed for filling and returning to the station be seven days." Suppose the time occupied in filling and returning were three weeks,-the party hiring would have to pay the d. or 1d. for the hire, and d. per sack demurrage for the week which had elapsed beyond the fourteen days, and d. per week until the sacks were returned to the depôt. [CRESSWELL, J.-The regulations are a little ambiguous in that respect: it may be that they are applicable to demurrage accruing before the sacks are sent upon the journey but, if these regulations only make the defendants responsible for demurrage accruing at the commencement of the journey, the plaintiffs made out no case entitling them to a verdict.] No question was raised at the trial as to the period at which the demurrage accrued the only question was, whether the bailees of the sacks contracted with the company to pay demurrage. The only person the company deals with or knows, is, the person who applies to them for sacks. It cannot be supposed that the regulations were intended to apply to strangers. At the time the sacks leave the contractor's premises for the purpose of being filled, the contract must necessarily be with the consignors. When does the express contract with the consignors end, and the implied contract with the consignee commence? If the consignee were to be held liable for demurrage, see the hardship that would be entailed on him, where the sacks do not reach him until

after the expiration of the fourteen days. The 10th article of the regulations of 1853 *strongly fortifies the argument. It pro[*351 vides that none of the company's sacks containing grain will be allowed to leave any station (local or foreign), unless a guarantee is first obtained by the clerk in charge, from the consignee, that the grain will be immediately discharged, and the sacks returned the same day, and to the same station." That plainly shows that no demurrage is contemplated as being incurred through delay on the consignee's part.

Manisty and Field, in support of the rule.-The question is, not simply whether the consignor or the consignee is liable for demurrage; but whether, upon the construction of the 2d, 3d, and 10th articles of the regulations of 1853, which were in force when this claim arose, these defendants ever entered into any contract, express or implied, to pay demurrage for the detention of sacks by the consignees, after they had ceased to be at the orders or under the control of the defendants. These regulations, it is to be observed, are prepared by the company rather for the guidance of their own servants than with the notion of their constituting a contract between themselves and the public, though, coupled with conduct, they may amount to a contract: and for this purpose they must be construed in conformity with the mode in which the parties have dealt with them. By the 3d article, demurrage of d. per sack per week is to be charged after the expiration of fourteen days: the hire to commence from the time the sacks leave the station to be filled; and seven days are to be allowed for filling and returning to the station. When do the fourteen days begin to run? Is it from the commencement of the hiring? That can hardly be; for, if so, what becomes of the provision allowing seven days for filling and returning? Is the consignor to be held responsible for delay, the fault of the company at either *station? Having filled and returned the [*352 sacks to the station, the consignor's duty is performed, and his liability ended. [CRESSWELL, J.-The 3d article, whatever its extent may be, is evidently directed against the consignor.] It is difficult to say that that is not so. [CRESSWELL, J.-That being so, what rule is there which obliges the consignee to pay demurrage eo nomine?] There is none. But the 10th article gives the company a claim for unliquidated damages against the consignee, provided it is acted upon and a guarantee taken from the consignee that the grain will be immediately discharged, and the sacks returned the same day, and to the same station. Suppose the consignors kept the sacks ten days, and then the consignee came and received the sacks, giving the guarantee provided by the 10th article, but failed to perform it, would not the company have a clear right of action for that breach of contract, even though the fourteen days should not have expired? [CRESSWELL, J.-It may be that the consignee would be liable to an action for the breach of

contract: but, is he liable for demurrage?] Not as demurrage. [CRESSWELL, J.-Suppose when the goods arrive at their destination, the consignee declines to accept them,-who is to pay demurrage?] The consignor, no doubt. But the moment the sacks are allowed to get into the hands of the consignee, the consignor's responsibility is at an end: otherwise, what is there to prevent the company from charging him with six years' demurrage? This is the construction the plaintiffs themselves have put upon the regulations, by their mode of dealing with them. [CRESSWELL, J.-No distinction was suggested at the trial between demurrage at the beginning or the end of the journey. Your argument now is, that, where the liability of the consignee arises under the 10th article, the liability of the consignor to demurrage under the 3d is discharged.] Precisely so. If the demurrage arises *before *353] the sacks reach the hands of the consignee, the consignor is liable. The subsequent regulations of 1855 show the construction which the plaintiffs themselves put upon those of 1853. There are numerous authorities to show, that, where the words of a contract are ambiguous, resort may be had to the acts or conduct of the parties to aid its construction. Thus, in Doe d. Pearson v. Ries, 8 Bingh. 178 (E. C. L. R. vol. 21), 1 M. & Scott, 259 (E. C. L. R. vol. 28), Tindal, C. J., says: "If the words of the instrument be ambiguous, we may call in aid the acts done under it as a clue to the intention of the parties." Again, in Chapman v. Bluck, 4 N. C. 187 (E. C. L. R. vol. 33), 5 Scott, 515, the same learned judge says, "We may look at the acts of the parties also; for, there is no better way of seeing what they intended, than seeing what they did under the instrument in dispute.'

CRESSWELL, J.(a)-Some little difficulty has arisen in disposing of this case, in consequence of the course it took at Nisi Prius. The question as opened by my Brother Pigott, was, whether the demurrage charged under the regulations issued by the company was payable by the consignors or the consignees. Neither party made any concession. It was admitted that the defendant knew of the regulations, and that the sacks were hired, filled, and returned to the station under them: and it was supposed that that concession involved the whole case. The various accounts rendered by the company were put in; and there the case rested. Upon full consideration of the regulations, I am of opinion that each party is to a certain extent right, and each wrong. Mr. Manisty admits to-day what he did not concede at the trial, viz. that there must originally have been a contract between *the con*354] signors and the company to pay demurrage, because the 2d article of the regulations of 1853 having fixed the sum payable for the hire of the sacks for the journey, the 3d article provides that "demurrage of d. per sack per week will be charged after the expiration of fourteen days," that the hire is "to commence from the time the sacks (a) Cockburn, C. J., and Willes, J., were sitting in the Court of Criminal Appeals.