174 HARVARD LAW REVIEW. settled in accordance with the final judgment in the King's Bench and with the opinion of merchants as recorded in the special ver- dict there. " It is probable," says Blackburn, " that the finding of the jury of the custom of merchants had great weight." ^ The true significance of such a thing as this, the inserting in the verdict of the understanding and custom of merchants on a question of doubtful interpretation as to the meaning and legal result of certain com- mercial transactions, can only amount to a mode of assisting the court by the judgment of experts. The court need not follow it; it is not a determination which has any binding force ; but it does present to the court a fact which may properly weigh with them in reaching a conclusion, just as the judgment of an expert witness presents to a jury a fact which may properly weigh with them in reaching their own independent conclusion upon the same point The value of a knowledge of "the custom among merchants" in interpreting mercantile contracts and transactions had been emphatically recognized by Lord Harwicke a generation earlier.^ A straightforward look at this sort of thing is taken by Lord Esher, in a late English case involving the construction of a policy of insurance.^ ** Anything," he says, ** more informal, inartistic or ungrammatical than those policies or charter parties cannot be found, and until recently whenever a point arose as to their meaning our judges almost invariably took the opinion of the jury upon the question. They did not merely take the evidence of custom, they asked juries what their view of the contract was, and I myself should have been prepared to take the opinion of a jury on this point as a matter of business. It is said that there is this difficulty, that it would be necessary to take the evidence of average adjusters, and that these adjusters have proclaimed that they do not act upon any customs of merchants, but that they endeavor to follow the law. But I should have suggested 1 Sale, 288. And so Christian, Bankruptcy, ii. 406 : ** As the decision of the Court of King's Bench, . . . though no reason was given, seems to be considered the present law, I presume it arises from the finding of the jury that the property in the goods is transferred by the blank indorsement and transmission of the bill of lading." As an original question, both Blackburn and Christian agree with the opinion of Lord Loughborough, as against Mr. Justice Buller and the King's Bench. 2 Ekins V. Macklish, Ambler, 184 (1753) 5 Kruger v. Wilcox, ib. 252 (1755). And so in the common-law courts, Fearon v. Bowers, i H. Bl. 364, note ; and a hundred years before that, Pickering v. Barkley, Style, 132. ^ Stewart v. Merchants' Mar. Ins. Co., 16 Q. B. D. 619, 627 ; s. c. 34 W. R. 208, 210.
