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defendants traverse the alleged intention: the guarantee was not intended to continue beyond three years; and all that it contemplated is accomplished. [COCKBURN, C. J.-In whose breast is that?] In the plaintiff's as well as in that of the defendants. The defendants want to show that a third party, and not the plaintiff, was really the principal in the transaction. The rule laid down in the cases cited only goes to preclude a defendant from putting to the plaintiff interrogatories as to something which is exclusively part of his

case.

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COCKBURN, C. J.-I am of opinion that this rule should be discharged. The obvious intention of the 51st section of the Common Law Procedure Act, 1854, was, to supersede the necessity of recourse being had in all cases to a court of equity for the purpose of aiding by discovery the proceedings in an action at common law, and to give the courts of common law power to afford the same sort of assistance to suitors there. But we must consider what was the object of the act; and we shall find it to have been this,—that, where either party has a case, but the materials for proving it are not in his own possession or under his own control, but in the possession of his adversary, he should be enabled to interrogate his adversary in order to establish his own case. But the statute clearly was not meant to apply so as to enable one party by means of interrogatories to discover how the other intends to shape his own case, and to see whether there are any defects in it which he may avail himself of. The defendants here do not come with any affidavits showing how the proposed interrogatories will further their defence to the action : but they come with a series of questions the manifest object of which is to probe the case of the plaintiff, without in any degree advancing that which they themselves propose to set up. CRESSWELL, J.-I am of the same opinion. There is undoubtedly considerable difficulty in drawing the line in each case between what interrogatories ought and *what ought not to be allowed. But it seems to me that all those which are proposed in this case fall within one or other of three classes,-first, where the defendant is seeking to discover the plaintiff's case, which cannot be allowed,-secondly, where the interrogatories are what are called fishing interrogatories, thrown out for the chance of getting hold of some fact or admission which might help the defendant's case,-thirdly, where the proposed interrogatories have a tendency to contradict a written document. Upon the whole, I think the decision of my Brother Crowder was right, and that this rule must be discharged.

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WILLIAMS, J.-I am entirely of the same opinion. This is in substance an attempt on the part of the defendants by indirect means to obtain a knowledge of what the plaintiff intends to rely on in support of his case. To allow that would be to make the statute an instrument of oppression to the suitor.

WILLES, J., concurred.

Rule discharged, with costs.

*681] *GORRISSEN and Others v. PERRIN and Others. June 11.

A. contracted to sell to B. 1170 "bales" of gambier, "now on passage from Singapore, and expected to arrive in London, viz. per Ravenscraig, 805 bales, per Lady Agnes Duff, 365 bales :”— Held, a warranty that the goods were then on passage.

Held, also, that evidence was admissible to show that, by the usage of the trade, a “bale” of gambier was understood to mean a package of a particular description; and that the contract was not satisfied by a tender of packages of a totally different size and description.

Quare, as to the extent of the vendor's liability on a sale of goods "expected to arrive" by a particular ship, where goods of the description contracted to be sold do arrive, but are consigned to a third party?

THIS was an action for the breach of a contract for the sale by the defendants to the plaintiffs of a quantity of gambier.

The first count of the declaration stated, that, by an agreement made between the plaintiffs and the defendants, it was agreed that the plaintiffs should buy of the defendants, and the defendants should sell and deliver to the plaintiffs, 1170 bales of gambier, which the defendants thereby warranted to be then on passage from Singapore, and expected to arrive in London, that is to say, 805 bales by a vessel called the Ravenscraig, and 365 bales by a vessel called the Lady Agnes Duff, at certain prices then agreed upon between the plaintiffs and defendants; and it was thereby further agreed, that, if either or both of the said vessels should be lost, the said agreement should be void for the quantity so lost: Averment, that the plaintiffs had done all things, and that all things had happened, and all times had elapsed, necessary to entitle them to a performance of the said warranty of the defendants, and to maintain this action for non-performance thereof; and that neither of the said vessels was lost: Breach, that the defendants had broken their contract, in this, to wit, that 1170 bales of gambier were not, nor was any part thereof, at the time of making the said agreement, on passage from Singapore, within the true meaning of their said contract; whereby the plaintiffs had lost and been deprived of the said gambier, and of the profit and advantage they would have derived from having the same.

*682] *Second count, that, by agreement between the plaintiffs and defendants, it was agreed that the plaintiffs should buy from the defendants, and the defendants should sell and deliver to the plaintiffs, 1170 bales of gambier then on passage from Singapore, and expected to arrive at London, that is to say, 805 bales by a vessel called the Ravenscraig, and 365 bales by a vessel called the Lady Agnes Duff, at certain prices then agreed upon between the plaintiffs and the defendants; and it was thereby further agreed, that, if either or both of the said vessels should be lost, the said agreement should be void for the quantity so lost: Averment, that the plaintiffs had done all things, and all things had happened, and all times had elapsed, necessary to entitle them to a delivery of the said gambier by the defendants, and to sue

the defendants for non-delivery thereof; and that neither of the said vessels was lost; but that the said specified quantities of gambier arrived at London by the said vessels respectively: Breach, that the defendants did not nor would at any time deliver to the plaintiffs the said 1170 bales of gambier, according to the true intent and meaning of the said contract, but tendered and offered to deliver to the plaintiffs in lieu thereof 1170 small packages of gambier, being a much less quantity of gambier than the 1170 bales of gambier so agreed to be delivered by the defendants to the plaintiffs; and the plaintiffs had thereby been deprived of the said gambier, and of the profit and advantage they would have derived from having the same: Claim, 10007.

The defendants pleaded,-first, that they did not promise as alleged,secondly, to the first count, that the bales of gambier in the contract mentioned were at the time of making the contract on passage from Singapore, thirdly, to the second count, that the specified quantities of gambier did not arrive at London by the *said vessels or [*683 either of them respectively,-fourthly, to the second count, that the defendants were at all times ready and willing to deliver to the plaintiffs all the said gambier which did arrive in the said vessels, or either of them, and that the plaintiffs were not ready nor willing to accept the same,-fifthly, to the second count, that the defendants did deliver to the plaintiffs the said gambier, according to the true meaning of the said contract. Issue thereon.

The cause was tried before Cockburn, C. J., at the sittings in London after last Michaelmas Term. The facts were as follows:-On the 5th of February, 1856, one Field, a colonial broker, was instructed by the plaintiffs to procure for them about 100 tons of gambier. Field informed them that he had two shipments to dispose of, and they agreed to take them; and, accordingly, Field on the same day sent them the following bought-note:

"Messrs. Gorrissen, Huffel & Co.

"London, 5th February, 1856.

"Gentlemen, I have this day bought by your order and for your account, 1170 bales gambier, now on passage from Singapore, and expected to arrive at London, viz.

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"For damages, if any, an allowance to be made of 18. per cwt. 1st class, damaged or heated,

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"Should either or both vessels be lost, this contract void for quantity so lost.

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Usual conditions. Prompt, three months from last day landing. Deposit, 15 per cent.

"Brokerage,

per cent.

"W. FIELD, Broker."

A sold-note in similar terms was on the same day sent by the broker to the defendants.

The Ravenscraig arrived in London on the 24th of March, having on board 805 packages of gambier, consigned to the defendants, and five other parcels containing in the aggregate 2382 bales consigned to other parties. The Agnes Duff arrived on the 25th of April, having on board 365 packages of gambier consigned to the defendants, and 1693 bales consigned to other parties.

The 805 packages by the Ravenscraig, and the 365 by the Lady Agnes Duff, turned out to be of less than a third of the size and weight of the packages usually known in the market as "bales" of gambier, which, it was proved, average about 2 cwt. each.

All the other packages brought by the two vessels were in fact ordinary bales. The plaintiffs thereupon declined to receive the gambier as a performance of the contract, but by arrangement they afterwards took it without prejudice.

Evidence was offered on the part of the plaintiffs, that the term "bale," as applied to gambier, was universally understood to mean a compressed bale of the average weight of 2 cwt. This was objected to on the part of the defendants, on the ground that it was in effect varying by parol evidence a written contract, which was not ambiguous upon the face of it, and which related to certain specific packages which were identified therein. The evidence was received.

On the part of the plaintiffs it was submitted, that the contract amounted to a warranty that 1170 bales of the description commonly known in the market as *bales of gambier, were on their pass*685] age from Singapore in the vessels named, and that that warranty was broken; or, assuming the contract to be conditional on the arrival of the bales, the plaintiff was still entitled to recover, inasmuch as a sufficient number of bales did in point of fact arrive by the Ravenscraig and Lady Agnes Duff to satisfy the contract, though consigned to other parties.

For the defendants, it was insisted that the contract was conditional, depending upon the double contingency of the stipulated number of bales arriving by the vessels named, and coming consigned to the defendants.

The Lord Chief Justice left it to the jury to say whether the packages in question were "bales" in the ordinary acceptation of the term, and whether that term had by the usage of the gambier trade acquired

the signification contended for by the plaintiff, viz., that of a package compressed, and weighing upon an average 2 cwt.

The jury found that the packages were not "bales" in the ordinary acceptation of the term, and that the bale of gambier known in the trade was a package compressed and weighing 2 cwt. His Lordship thereupon directed a verdict to be entered for the plaintiffs, reserving leave to the defendants to move.

James Wilde, Q. C., in Hilary Term last, accordingly obtained a rule nisi to enter a verdict for the defendants on the first count of the declaration, on the grounds that there was no warranty that the bales mentioned in the contract were the usual bales sold in London, and that the evidence was inadmissible; also that there was no warranty that at the time of the contract the bales were on their passage, and that the goods delivered were sufficient to fulfil the contract; and on the second count, on the ground that the defendants were not *bound to [*686 deliver any other bales than those which they did, and that the bales belonging to others which did arrive were not the bales contracted for;" or for a new trial, on the ground that the evidence as to the meaning of the word "bale" was inadmissible. He submitted that the words "now on passage from Singapore," were words of condition, and not of warranty; and he referred to Hayward v. Scougall, 2 Campb. 56, Boyd v. Siffkin, 2 Campb. 326, Bold v. Rayner, 1 M. & W. 343,† Lovatt v. Hamilton, 5 M. & W. 639,† Stockdale v. Dunlop, 6 M. & W. 224,† Johnson v. Macdonald, 9 M. & W. 600,† Fischel v. Scott, 15 C. B. 69 (E. C. L. R. vol. 80), and Barker, App., Windle, Resp., 6 Ellis & B. 675 (E. C. L. R. vol. 88).

Byles, Serjt., and Honyman, in Easter Term, showed cause.-The first question is, whether the evidence of the understanding of the trade as to the meaning of the term "bale" was properly received. Upon that the current of authorities is tolerably clear. In the notes to Wigglesworth v. Dallison (Dougl. 201), in 1 Smith's Leading Cases, 453, 462, the rule is thus stated," With respect to commercial contracts, it has been long established that evidence of a usage of trade applicable to the contract, and which the parties making it knew, or may be reasonably presumed to have known, is admissible for the purpose of importing terms into the contract respecting which the written contract is silent." And this rule is not limited to contracts which are strictly of a mercantile character: thus, in Smith v. Wilson, 3 B. & Ad. 728 (E. C. L. R. vol. 23), evidence was received to show that by the custom of a particular district the words "1000 rabbits" meant 1200 rabbits." See the authorities also referred to in Taylor on Evidence, 2d edit. §§ 1061, 1062. In Taylor v. Briggs, 2 C. & P. 525 (E. C. L. R. vol. 12), where a controversy arose as to the meaning of the word "cotton in bales" in a charter-party, Abbott,

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