
    Silas P. Halsey against Jesse Brown, Jesse Brown, jun. Zebulon P. Burnham, and Dyer Perkins.
    in aa action against the owners of a vessel, for a quantity of gold and silver coin, taken by the master at JVevis, on freight, evidence of a custom of merchants in Connecticut and JJew-Yorlc, that the freight of money received by the master is his perquisite, and that he is to he personally liable on the contract, and not the owners, was held to be admiasi-
    MOTION for a new trial.
    This was an action of assumfisit, brought against the defendants as owners of the brig ‘Eliza, for 65 pennyweight of Portuguese and Spanish gold, and 100 Spanish milled dollars, shipped by the, plaintiff at JVevis, on board said brig, to be transported, and delivered to a mercantile house in Arew-London, for which the master gave the plaintiff a bill of lading in the usual form.
    The defendants pleaded the general issue.
    On the trial, the defendants offered to prove, that there was a usage or custom of merchants existing in the state of Connecticut, and at JVew- York, that the freight of money received by the master of a vessel was his perquisite; that he was to be compensated for the transportation of it, and not the owners of the vessel; and that the contract was considered as being personal, and of individual obligation, but not as. the contract of the owners. To the admission of this evidence the plaintiff objected. The court overruled the objection, and admitted the evidence. The defendants thereupon obtained a verdict; and the plaintiff moved for a new trial. The question being reserved for the opinion of the nine judges,
    
      Homier argued in support of the motion.
    1. The law rendering the owners liable for goods received by the master to be transported is settled. The contract of the master is the contract of the owners; his non-delivery is their non-delivery. The maxim applies here res/wndeant superiores. Abbott, 88 — 94. Milis v. Turner, 8 Term Rep. 533. ,
    2. The law upon this point being settled, no usage of merchants could be admitted. Usage is admissible only in explanation of doubtful points. Edie et al. v. Mast-India Company, 2 Burr. 1216.; particularly the opinions of Lord Mansfield, p. 1224. of Justice Denison, p. 1226. and of Justice Tester, p. 1228. Marsh, on Ins, 609.
    3. If proof of any usage were admissible to the point under consideration, still the usage proved in this case was inadmissible. The contract was entered into at Nevis, a foreign country. The usage of merchants in Connecticut was perfectly irrelevant as to the construction to be given to it. Robinson v. Bland, 2 Burr. 1078. This contract was not made with a view to the laws of this state; much less with a view to any special usage.
    
      Further, evidence was admitted to prove the usage of New-York. The contract was not made there; it was not to be performed there ; neither of the parties lived there. The usage of Kamfischatka might as well have been admitted.
    4. But it will be said, that the master was to receive the freight. That this circumstance makes no difference is settled by the case of Boucher v. Lawson, Cas. temp. Hardw. 85. Abbott, 89. This perquisite diminishes the wages of the master; and, in that way, goes to the benefit of the owners.
    
      Goddard, contra.
    There is no question before the court as to the liability of the owners. The court did not instruct the juty, that the usage was to control the law. The objection to the evidence was merely, that it was irrelevant. To support the objection, it must be shown, that the evidence could not be admitted to prove any case, which could be made out under the declaration.
    [Swift, J. The question which was meant to be reserved was, whether this usage could be admitted to explain the law.]
    
      Goddard then contended, that no case was to be found, embracing the circumstances of this case, in which the owners had been held liable ; and that it was proper to shew the general usage and understanding of merchants in this state, where the defendants lived, in order to get at the true construction of this contract. Having shown the usage here, what objection could there be to proving that it existed at NewYork also ? Does the universality of the usage render it the less proper to be received, ? Its existence at New- York came in incidentally.
   tif the Court.

The question in this ease is, whether evidence of a particular custom or usage can he given in evidence to control a general law.

The general law applicable to the commercial world, ‘ that owners of vessels are answerable for the contracts and conduct of their masters, when acting whir,., -he Scope of their authority, must be admitted. I But as it is a principie, that the general common law may be, and in many instances is, controlled by special custom; so the general commercial law may, by the same reason, be controlled by a special local usas» . so far as that usage extends; which, will operate upon all contracts of this nature, made in view of, or with reference to, such usage. \

We are, therefore, of opinion, that the evidence offered to prove the particular usage in this case was ad» missible.

New trial not to be granted.  