The steamship Douro was captured as prize | WILLIAM DAYTON AND EDWARD SERVISS, Claimants of Schooner MONTEREY and Cargo, v. THE UNITED STATES. of war by the United States gunboat Quaker City, Captain James W. Fraley commanding, on the 9th of March, 1863, on the Atlantic Ocean, off Cape Fear on the coast of North Carolina; the place of capture being about 25 miles east of Frying-Pan Shoals, or about 160 Where decree does not dispose of whole case, it is or 170 miles from the harbor of Wilmington, N. C., whence the vessel had run out. She was brought on to the Port of New York and there libeled in prize by the United States attorney on the 13th of March, 1863. On the 28th of April, 1863, Charles Edwards Esq., as attorney, filed a claim for O. T. Fallenstein, of Liverpool, England, for the vessel, not final. Where the libel claims the condemnation of a schooner and cargo, and the decree condemns the schooner, but makes no mention of the cargo, the decree does not dispose of the cause and is not final. [No. 144.] Argued Feb. 16, 1866. Decided Feb. 26, 1866. and a claim for Chapple, Dutton & Co., of the APPEAL from the Circuit Court of the Unit same place, for the cargo. These claims allege that the persons represented by Mr. Edwards are British subjects, residing in Great Britain, and that they are, respectively, owners of the vessel and cargo. They admit, in substance, that the vessel had come out of the Port of Wilmington on the voyage on which she was captured, but allege that there was no efficient blockade of that port. The district court, on the 8th of June, 1863, condemned both vessel and cargo as lawful prize of war, from which decree the claimants, by Mr. Edwards, appealed to this court. Messrs. Jas. Speed, Atty-Gen., and Titian J. Coffey, for the United States: The Douro left Wilmington, N. C., on the 8th of March, 1863, laden with a cargo of four hundred and twenty-two bales of cotton, bound for Nassau, and was captured by The Quaker City off Cape Fear the next day, prosecuting the same voyage. "When first pursued," says her captain, she was steering toward Nassau, being about ten hours out from Wilmington." No authority is needed to show that the guilt of blockade breaking adheres to the vessel and cargo throughout the whole voyage. Mr. Chief Justice Chase delivered the opinion of the court: The decree of the District Court of the United States for the Southern District of New York in this cause is affirmed. It is impossible to imagine a plainer case for condemnation for breach of blockade. The captain of the captured vessel on his examination, preparatory to the original hearing, says: "I knew the Port of Wilmington was blockaded when I went in, for I had six guns fired at me, and I knew it when I came out." And again: "The vessel was captured because she had been running the blockade." And again: "The capturing vessel fired a broadside or half a broadside at us, amounting to some fifty-five guns. This was done because we were trying to escape." The mate says substantially the same things. We cannot approve the conduct of the counsel who advised this appeal. An appeal is a matter of right, and, if prayed, must be allowed; but should never be prayed without some expectation of reversal. We impose penalties when writs of error merely for delay are sued out, in cases of judgments at law for damages; and if the rule were applicable to the case before us, we should apply it. Affg-Blatchf., Prize case, 362. ed States for the District of Maryland. Motion to dismiss for reason stated in the opinion. Mr. Andrew S. Ridgely, for plaintiff in error. Messrs. J. Hubley Ashton and Jas. Speed, Atty.-Gen, for defendant in error. Mr. Chief Justice Chase delivered the opinion of the court: The motion to dismiss in this cause was argued by the Attorney-General and Mr. Ridgely. We have looked into this record and find no final decree. The libel claims the condemnation of the schooner Monterey and cargo. The answer denies this liability. The cargo was delivered to the respondents at an appraised value, and the money was deposited with the register. The decree condemns the schooner, but makes no mention of the cargo. The decree, therefore, does not dispose of the cause and cannot be final. The appeal must, therefore, be dismissed, and the cause sent to the Circuit Court for the District of Maryland for further proceedings. THE COUNTY OF WASHINGTON, Piff. in Err., v. CLARK DURANT. Case cannot be brought into this court by agreement-an appeal or writ of error is necessary. An appeal allowed, or a writ of error served, is jurisdiction. essential to the exercise by this court of appellate A case brought into this court by agreement of parties, will be dismissed. [No. 105.] Submitted Jan. 26, 1866. Decided Feb. 26, 1866. States for the District of Iowa. The point on which the decision turned appears in the opinion. Mr. Charles Mason, for plaintiff in error. Mr. Chief Justice Chase delivered the opinion of the court: This cause was submitted on a printed argument for the defendant in error. Upon looking into the record, we find that it has been brought into this court by agreement of parties, and without the issuing or service of a writ of We think that an appeal allowed or a error. writ of error served, are essential to the exer- | boat, called The Adriatic, whereof master for the present voyage, now lying at Memphis and bound to Cairo, being marked and numbered as below; and are to be delivered without delay, in the like good order and condition at the aforesaid Port of Boston, Mass., THE YORK MANUFACTURING COM (fire and the unavoidable dangers of the river PANY, Plf. in Err., only excepted), unto Samuel Batchelder, treasurer, or to his assign, he or they paying freight at the rate of four 75-100 dollars per bale from THE ILLINOIS CENTRAL RAILROAD Memphis to Boston-all rail from Cairo. In v. COMPANY. (See S. C., 3 Wall., 107-114.) Limitation of liability of common carrier by contract-authority of agent-objections to deposition. A common carrier has a right to limit his responsibility by special contract. Agents of plaintiff were authorized to stipulate such limitation of responsibility, where they held Where there is no evidence that a consideration was not given for the stipulation, a consideration expressed is sufficient to support the contract. Where a deposition was taken upon a commission, all objections of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination or upon motion to suppress the deposition. This rule may be relaxed where the deposition is returned at so brief a period before the trial as to preclude a proper examination, and prevent a motion to suppress. [No. 107.] themselves out as owners. Argued Jan. 30, 1866. Decided Feb. 26, 1866. IN ERROR to the Circuit Court of the United ERROR to the Circuit Court of the United The plaintiff is a Corporation created by the State of Maine, and the defendant a common carrier from Cairo to Chicago. The action is on the case for the loss of two hundred and one bales of cotton delivered to the defendant for carriage. No contract is alleged by the plaintiff, but its action is based upon the common law liability of the defendant as a carrier for hire. The general issue alone is pleaded. Proof was made of the delivery of the cotton at Cairo, on the 1st of November, 1859, by the steamer Adriatic, to the regular receiving agent of the Illinois Central Railroad Company at that place. It was discharged by the steamer upon a barge owned by such agents, which was afterwards moved by them to the levee of the Illinois Central Railroad Company, where the cotton was burned at midday. The defendant set up, by way of defense, a special contract, alleged to have been made at Memphis, for the carriage of the cotton, by which the plaintiff assumed the risk of loss by fire. The only evidence of such contract is contained in the deposition of Thomas Trout, of Memphis, the plaintiff sued out a commission to take the testimony of this witness, to prove the ownership and value of the cotton. To this commission the defendant attached a cross interrogatory and a copy of a bill of lading. "Shipped by Thomas Trout & Son, in good order and condition, on board the good steam NOTE. From what liability for loss or damage, carrier may exonerate himself by contract. See note to New Jersey St. Nav. v. Merchs. B'k, 47 U. S. (6 How.), 344. witness thereof, the master or clerk of said steamboat hath affirmed to four bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void." This witness states in his deposition, taken under such commission, that he purchased the that a bill of lading was signed by Harris, Hunt cotton as the commission agent of the plaintiff; & Co., agents of the defendant, after the delivery upon the steamer, and after it was signed by the clerk of the boat; that he did not examine it; that his attention was not called to the fire clause; that he had no authority to make a special contract for the plaintiff by which it should assume the risk of loss by fire, and that he supposed it a receipt and not a contract. He states that the instrument attached to the commission is a copy. No proof was offered of the loss of the original instrument, or that it was unattainable, or of notice to the plaintiff or its attorney to produce it, as a foundation for the introduction of secondary evidence of its contents. The plaintiff resisted the introduction of this evidence upon the following grounds: 1st. Because several originals were shown to be in existence, and no foundation was laid for the introduction of secondary evidence of their contents. 2d. Because it appeared that the copy was attached to the cross interrogatory and commission, by the attorney of the defendant, before issued; and that such question and copy suggested to the witness material matter, to which he had not been examined in chief. The copy was admitted in evidence and exception taken to the ruling of the court. The plaintiff then offered to read to the jury the following statement of the witness on the cross-examination, to wit: "I understood the shipping bill as a receipt for the cotton and not a contract. I did not examine the shipping bill, and my attention was not called to the 'fire clause';" as tending to show that he did not assent to the terms of the contract; but the court refused to allow it to be read, and exception was taken. The court thereupon charged the jury in substance: 1st. That the authority of Thomas Trout & Son to make such contract was immaterial to the issue. 2d. That the assent of the owner to the terms of the contract, was also immaterial. 3d. That it is competent for the carrier alone to limit its liability, without the engagement of the owner. Mr. Chas. Hitchcock, for plaintiff error: The extraordinary error in this record is, the admission of secondary evidence of a written contract in every way essential to the defense without any, the least, foundation being laid for it by notice at any time to produce the original, or proof of its loss, or that it was unattainable. The rule, that notice to produce or the loss of the original should be shown before parol evidence of the contents of a written instrument, is admissible, it is believed, has rather been questioned. 1 Greenl. Ev., sec. 558, 560; 2 Sand. Pl. & Ev., 833, et seq.; DeLane v. Moore, 14 How., 263; Tayloe v. Riggs, 1 Pet., 591; Bushnell v. Bishop Hill Colony, 28 Ill., 204; Matteson v. Noyes, 25 Ill., 591; Warner v. Campbell, 26 Ill., 282: Cummings v. Mc Kinney, 4 Scam., 59; Palmer v. Logan, 3 Scam., 56; Ferguson v. Miles, 3 Gilm., 364. It is, perhaps, too late to argue that a common carrier may not, by express stipulation of the owner, discharge himself from a liability which the law has annexed to his employment. It is believed that policy and principle concur in requiring that all such special contracts should be deemed nullities. Cole v. Goodwin, 19 Wend., 251; Gould v. Hill, 2 Hill, 263; Fish v. Chapman, 2 Kell. (Ga.), 349; The N. J. S. Nav. Co. v. Merch. Bank, 6 How., 344. This is an action to recover damages for the loss of two hundred and one bales of cotton received at Memphis, Tennessee, by agents of the Illinois Central Railroad Company at that place, for transportation to Boston, Massachusetts. The cotton was shipped on the steamer Adriatic, at Memphis, and was delivered to the defendant at Cairo, in November, 1859, and while in its possession, was destroyed by fire. The contract for the transportation was in the form of a bill of lading, containing a clause exempting the defendant from responsibility for losses by fire, and it is upon this exemption that the defendant rests its defense. The right of a common carrier to limit his responsibility by special contract has long been the settled law in England. It was the subject of frequent adjudication in her courts, and had there ceased to be a controverted point before the passage of the Carriers' Act of 1830. In this country it was at one time a subject of much controversy whether any such limitation could be permitted. It was insisted that, exercising a public employment, the carrier owed duties at common law, from which public policy demanded that he should not be discharged even by express agreement with the owner of the goods delivered to him for trans A different view of this decision has, how-portation. This was the ground taken by Mr. ever, been taken by the courts of New York and Illinois, and the rule, after great conflict, has become established. The assent of the owner is here made an essential requisite, and the contract before the court was signed by the parties. 1. Cent. R. R. Co. v. Morrison, 19 Ill., 136; Western Trans. Co. v. Newhall, 24 Ill., 466; The Am. Trans. Co. v. Moore, 5 Mich., 371. In the case of Mich. Cent. R. R. Co. v. Hale, 6 Mich., 257, it is expressly held that the assent of the owner to the limitation is necessary. The court was also requested to instruct the jury, that "The burden lies upon the carrier, to prove a consideration for the special contract exempting the carrier from its common law liability for loss by fire; and without such consideration, the contract has no legal validity." In all the cases in which effect has been given to these special contracts with carriers, by which their common law liability was limited, this essential requisite of a contract has been found. N. J. S. Nav. Co. v. Merch. Bank, 6 How., 344; Ill. Cent. R. R. Co. v. Morrison, 19 Ill., 136; Kimball v. R. & B. Railway, 26 Vt., 252. Messrs. Wm. Tracy, Wm. Curtis Noyes and Lacy, for defendant in error: The right of a carrier to make a special contract to restrict his common law liability against accidents by fire not originating from his own negligence, is well established both in England and America. Dorr v. N. J. S. Nav. Co., 11 N. Y., 492, and authorities there cited; Com. Cont., 779; Mer. Ins. Co. v. Chase, 1 E. D. Smith, 115; Nevins v. Bay State Co., 4 Bosw., 225; Boswell V. H. R. R. R. Co., 5 Bosw., 699; Kitzmiller v. Van Rensselaer, 10 Ohio St., 64. This is the rule of Illinois. 1. Cent, R. R. Co. v. Morrison, 19 Ill., 136; Western Trans. Co. v. Newhall, 24 Ill., 466. Justice Cowen, of the Supreme Court of New York, in Cole v. Goodwin, 19 Wend., 251, and, although what that learned judge said on this point was mere obiter, as the question presented was not upon the effect of a special agreement, but of a general notice, it appears to have been adopted by a majority of the court in the subsequent case of Gould v. Hill, 2 Hill, 623. But from this doctrine that court has since receded; and, in a recent decision, the Court of Appeals of that State has affirmed the right of the carrier to stipulate for a limitation of his responsibility. Parsons v. Monteath, 13 Barb., 353; Moore v. Evans, 14 Barb., 524; Dorr v. The N. J. Steam Nov. Co., 11 N. Y., 486. The same rule prevails in Pennsylvania; it has been asserted in Ohio, and in Illinois, and, it is believed, in a majority of the other States; and in The New Jersey Steam Navigation Co. v. The Merchants' Bank, 6 How., 382, it received the sanction of this court. Atwood v. Reliance Trans. Co., 9 Watts, 89; Cam. & Amb. R. Co. v. Baldauf, 16 Pa. St., 67; Verner v. Sweitzer, 32 Pa., 208; Kitzmiller v. Van Rensselaer, 10 Ohio St., 64; Ill. Cent. R. R. Co. v. Morrison, 19 Ill., 136; The Western Trans. Co. v. Newhall, 24 Ill., 466. Nor do we perceive any good reason, on principle, why parties should not be permitted to contract for a limited responsibility. The transaction concerns them only; it involves simply rights of property; and the public can have no interest in requiring the responsibility of insurance to accompany the service of transportation in face of a special agreement for its relinquishment. By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee and private carrier for hire. The law prescribes the duties and responsibilities of the common carrier. He exercises, in one sense, a public employment, and has duMr. Justice Field delivered the opinion of ties to the public to perform. Though he may limit his services to the carriage of particular the court: kinds of goods, and may prescribe regulations | In this case there was no occasion for any such to protect himself against imposition and fraud, relaxation of the rule, and had the objection and fix a rate of charges proportionate to the been taken before the trial-either at the exammagnitude of the risks he may have to encoun- ination of the witness or on a motion to supter, he can make no discrimination between press-to the proof of the copy without producpersons, or vary his charges from their condi- ing the original or showing its loss, the oppotion or character. He is bound to accept all site party would undoubtedly have secured the goods offered within the course of his employ-production of the original, if in existence, or, ment, and is liable to an action in case of re- if it be lost or destroyed, been prepared to acfusal. He is chargeable for all losses except count for its absence. such as may be occasioned by the act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neg lect on his part; and he cannot, by any mere act of his own, avoid the responsibility which the law thus imposes. He cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsiblity by making exorbitant charges when such assent is refused. The judgment must be affirmed, and it is so ordered. Wall., 35, 267; 93 U. S., 188; 104 U. S., 155; 1 Flipp.. Cited-3 Wall., 192; 16 Wall., 328; 17 Wall., 375; 21 248; 2 McCah., 54; 10 Biss., 29; 17 Blatchf., 414, 422; 61 Ill., 187; 1 Am. Rep., 133 (100 Mass., 506); 2 Am. Rep., 125 (15 Minn., 281); 3 Am. Rep., 674 (43 N. Y., 123); 6 Am. Rep., 324 (34 Md., 197); 10 Am. Rep., 92 (37 Ind., 452): 12 Am. Rep., 279 (25 Mich., 335); 17 Am. Rep., 726 (47 Ind., 487); 23 Am. Rep., 584 (52 Ala., 606); 35 Am. Rep., 757 (14 W. Va., 180); 98 Mass., 245, 248; 16 Mich., 116, 117; 42 Mo., 92; 47 Ind., 487. The owner of the goods may rely upon this responsibility imposed by the common law, CHARLES H. WALKER ET AL., Appts., which can only be restricted and qualified when he expressly stipulates for the restriction V. and qualification. But when such stipulation THE WESTERN TRANSPORTATION CO. is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforce ment. We do not understand that the counsel of the plaintiff in error questions that the law is as we have stated it to be. His positions are that the agents of the plaintiff at Memphis, who made the contract with the Illinois Central Railroad Company, were not authorized to stipulate for any limitation of responsibility on the part of that Company; and that no consideration was given for the stipulation made. The first of these positions is answered by the fact that it nowhere appears that the agents disclosed their agency when contracting for the transportation of the cotton. So far as the defendant could see, they were themselves the owners. The second position is answered by the fact, that there is no evidence that a consideration was not given for the stipulation. The Company, probably, had rates of charges proportioned to the risks they assumed from the nature of the goods carried; and the exception of losses by fire must necessarily have affected the compensation demanded. Be this as it may, the consideration expressed was sufficient to support the entire contract made. The objection urged to the introduction of the copy of the bill of lading annexed to the deposition of the witness Trout, was properly overruled. The deposition was taken upon a commission, and in such cases the general rule is, that all objections of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination, or upon motion to suppress the deposition. The rule may be different in some state courts; but this rule is more likely than any other to prevent surprise and secure the ends of justice. There may be cases where the rule should be relaxed, as where the deposition is returned at so brief a period before the trial as to preclude a proper examination, and prevent a motion to suppress. (See S. C., 3 Wall., 150-155.) Act of March 3, 1851 construed liability of owner for conduct of officers or mariners—usage. from liability for loss by fire, to which he has not The Act of March 3, 1851, relieves the ship-owner contributed either by his own design or neglect. The 6th section of the Act saves the remedy to which any party may be entitled against the master, officers or mariners of such vessel, for negligence, fraud, or other malversation. The owner is not liable for the misconduct of the officers and mariners of the vessel, in which he Decided Feb. 26, 1866. Argued Feb. 9, 1866. linois. ed States for the Northern District of Il libelants complain that on the 17th of October, This is a suit in admiralty in personam. The 1856, at the port of Chicago, they delivered to the respondents, as common carriers, six thousand fourteen bushels and twenty-eight pounds of wheat, of the value of $7,000, to be transported on the propeller Falcon, whereof the respondents were the owners, to the port of Buffalo, and that whilst said wheat was on board of said propeller, and in the custody and control of her crew, was wholly lost. The cause or manner of the loss is not mentioned in the libel, and the respondents are called upon to account for the non-delivery of property. the The answer is sworn to, and admits the NOTE.-Admissibility of usage and custom in construction of contracts. See note to Adams v. Otterback, 56 U. S. (15 How.), 539. When a custom is void, as unreasonable or against law. A custom is not binding upon a person unless he had knowledge of it; but where it is very general and ancient and well known, there is frequently a presumption of law that he had knowledge of it. Walsh v. Miss. etc., Co., 52 Mo., 434; Ober v. Carson, Hills, 114 Mass., 106; Sutton v. Tatham, 10 Ad. & El., 62 Mo., 209; Loud v. Hall, 106 Mass., 404; Porter v. 27; Pollock v. Stables, 12 Q. B., 765; Foye v. Leigh several allegations in the libel except as to the ownership and value of the wheat, which is alone traversed. The 4th article says, That "Said property was shipped on board said propeller in the manner and under the circumstances and subject to the terms and conditions hereinafter set forth, and none other." The 8th article of the answer sets up that the respondents were, as owners of The Falcon, common carriers, and that said propeller was, at the time when said loss occurred, engaged in the "freight and passenger" business, and that they received the property as common car riers; that said property was, whilst on board said propeller, wholly lost by fire, which happened to be aboard said propeller, and by means of such fire, and not otherwise, the propeller and respondents were prevented from delivering said property. The 11th article sets up a special contract, which was that said respondents "Were not to be made liable to respond for injuries or dam age to the property so shipped, caused by fire unless the said fire should have been caused by the negligence or misconduct of the owners thereof, his or their servants or agents." Under the rule an amendment to the libel is made, admitting this contract, and under the rule, the balance of the answer is to be taken as denied. Under this form of the pleadings, the evidence on both sides was taken. The libel was dismissed in the district court July 21st, 1860. The cause was appealed by the libelants to the circuit court where it was heard, and the decree of the district court was affirmed by a dismissal of the libel, Oct 26, 1863. Messrs. Robert Rae and A. W. Arrington, for appellants. Mr. Rufus P. Spaulding, for respond ents. Plaintiffs filed their libel in personam for the value of wheat shipped on board the defendant's ship, Falcon, at Chicago, to be delivered at Buffalo. Defendant admits the receipt of the wheat on board the vessel, and the failure to deliver, and sets up three defenses: 1. That the wheat was destroyed by fire which was not caused by the design or neglect of defendant. This article is framed to meet the Act of March 3, 1851. 2. That the wheat was received on board with reference to the terms of the bills of lading usually given by respondent, which contained an exception of the dangers of navigation, fire and collision. No proof was offered under this article. 3. That it was received with reference to the forms of bills of lading in general use on the lakes, which contained an exception of perils of navigation, perils of the sea and other equiv. alent words; and that by general and well known usage and custom, these words included loss by fire. In setting forth the custom in the 11th article of the answer, it is stated that the custom is to construe those words as an exemption from liability for loss by fire, unless it occurs by the negligence or misconduct of the owner of the vessel, his agents or servants. It then avers that the fire did not occur through the negligence or misconduct of respondent or its servants or agents. 1. Is the owner of a vessel used in the trade on the lakes, liable, independent of contract, for a loss by fire which occurs without any design or neglect of its owner, although it may be traced to negligence of some of the officers or agents having charge of the vessel? 1. The answer to this question depends up. on the construction to be given to the Act of March 3, 1851 (9 U. S. Statutes, 635), entitled An Act to Limit the Liability of Ship-Owners, Mr. Justice Miller delivered the opinion of and for other Purposes. That the owners of the court: ton, 22 N. H., 71; Saint v. Smith, 1 Coldw., 51; Walker v. Barron, 6 Minn., 508. Where the usage is one of a particular trade or locality, the presumption, that parties have contracted in reference to it, may be rebutted by proof that one of the parties was ignorant of such custom. Goodnow v. Parsons, 36 Vt., 46; Wadley v. Davis, 63 Barb., 500; Walls v. Bailey, 49 N. Y., 464 (10 Am. Rep., 47; Hill v. Hibernia Ins. Co., 10 Hun, 26; Sawtelle V. Drew, 122 Mass., 228. A mere custom or usage is without force in opposition to a positive law. Coleman v. McMurdo, 5 Rand., 51; Randall v. Smith, 63 Me., 105 (18 Am. Rep., 300; Cromwell v. The Fanny Fosdick, 15 La. Ann., 436; Winder v. Blake, 4 Jones, 332; Thompson v. Ashton, 14 Johns., 316. A custom contrary to morality, religion and the law of the land is void. Holmes v. Johnson, 42 Pa. St., 159. A custom to take anything from another's land or for a profit a prendre is not a lawful custom, no matter how ancient or uniform. Kenyon v. Nichols, 1R. I., 106; Lloyd v. Jones, 6 C. B., 81; Atty-Gen. v. Mathias, 4 Kay & J., 579; Waters v. Lilley, 4 Pick., 145; Littlefield v. Maxwell, 31 Me., 134; Perley v. Langley, 7 N. H., 233; Lufkin v. Haskell, 3 Pick., 356. A transaction within the statute against usury is not made valid by a custom of the trade. Dunham v. Dey, 13 Johns., 40; 16 Johns., 367; Greene v. Tyler, 39 Pa. St., 361. Usage will not control the legal interpretation of a statute. Dwight v. Boston, 12 Allen, 316. A custom tending to tempt to bad faith or wrong doing is void. Lehman v. Marshall, 47 Ala., 362. vessels were liable at common law in the case A custom calculated to violate a well settled rule of law has no effect. Green v. Tyler, 39 Pa. St., 361; Delaplaine v. Crenshaw, 15 Gratt, 457; Piscataqua Ex. B'k v. Carter, 20 N. H., 246. A custom or usage which is illegal or one which violates the provisions of a statute cannot be enforced. Perkins v. Franklin B'k, 21 Pick., 483; N. Y. F. Ins. Co. v. Ely, 2 Cow., 678. Local usage in a particular trade is not admissible to control the rules of law upon the subject. Higgins v. Moore, 34 N. Y.,417; Groat v. Gile, 51 N. Y., 431. Usage for master to sell cargo of a stranded vessel without necessity, is void (Bryant v. Com. Ins., Co., 6 Pick., 131); so is a custom of factors to pledge goods of principal (Newbold v. Wright, 4 Rawle, 195); so is a custom different from law, to re-enter for forfeiture for non-payment of rent. Stoever v. Whitman, 6 Binn., 416. Usage of a trade cannot be shown to vary a judicial interpretation already given to words. Security B'k v. National B'k, 67 N. Y., 458; 23 Am. Rep., 129; Bargett v. Orient Mut. Ins. Co., 3 Bosw., 385. Custom to treat a sale on thirty days as a sale for cash is void (Chapman v. Devereaux, 32 Vt., 616); so is custom that upon an ordinary sale and delivery no title passes without payment of consideration within a certain time (Haskins v. Warren, 115 Mass., 514); so is custom that stave maker should retain for his own use clippings, corner pieces and culls without consent of owner (Wadley v. Davis, 63 Barb., 500); so is custom requiring consignee to receipt for grain weighed into a bin before he ascertains whether the amount is there. Christian v. First Div. St. Paul, &c., R. R. Co., 20 Minn., 21. |