time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law; it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest (v) will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "For, since (says Julianus,) the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people

[*74] declare their *assent to a law by suffrage, or by a uniform course of acting accordingly ?" Thus did they reason while Rome had some remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. "Quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem comferat," says Ulpian. (w) "Imperator solus et conditor et interpres legis existimatur," says the code. (2) And again, "sacrilegii instar est rescripto principis obviari." (y) And indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. (8.)

II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by King Alfred, and afterwards by King Edgar and Edward the Confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament. (z.)

Such is the custom of gavelkind in Kent, and some other parts of the kingdom (though perhaps it was also general till the Norman conquest), which [*75] ordains, among other things, that not the eldest son only of the father

shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attained and hanged, yet the heir shall succeed to his estate, without any escheat to the lord. Such is the custom that prevails in divers ancient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all (v) Ff. 1. 3. 32. (w) Ff. 1. 4. 1. (*) Mag. Cart. 9 Hen. III, c. 9. — 1 Edw. III. St. 2. c. 9. — 14 Edw. II1 St. 1. c. 1.—and 2 Hen. IV. c. 1.

(x) C. 1. 14. 12.

(y) C. 1. 23. 5.

(8) [Lord Chief-Justice Wilmot has said that "the statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. 2 Wils. 348. And statute law, and common law, both originally flowed from the same fountain." Ib. 350. And to the same effect Lord Hale declares, "that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record." Hist. Com. Law, 66. Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced by usage, even of modern date, which general convenience has adopted. Of this nature is the law of the road, viz.: that horses and carriages should pass each other on the whip hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and our judges have so far confirmed it, as to declare frequently at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences.]

her husband's lands; whereas, at the common law, she shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors. Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage. Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament. (a)

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; (b) being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that "cuilibet in sua arte credendum est." (9) The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

*As to gavelkind, and borough-English, the law takes particular notice of them, (c) and there is no occasion to prove that such customs [*76] actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded, (d) and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. The trial in both cases (both to shew the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;" and also to shew "that the lands in question are within that manor") is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded in the same court. (e)

The customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder; (f) unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c., for then the law permits them not to certify on their own behalf. (g)

When a custom is actually proved to exist, the next inquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used; "Malus usus abolendus est" is an established maxim of the law. (h) To make a particular custom good, the following are necessary requisites. (10)

(a) 8 Rep. 126. Cro. Car. 347. (e) Dr. and St. 1. 10.

(b) Winch. 24. (f) Cro. Car. 516.

(c) Co. Litt, 175.

(g) Hob. 85.

(d) Litt. 265.
(h) Litt. § 212. 4 Inst. 274.

(9) The lex mercatoria, or custom of merchants, as Mr. Christian observes, is only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land as the laws relating to marriage or murder. Merchants do not modify them at will, but take the law from the courts like all other classes.

(10) A custom is defined as being such a usage as, by common consent and uniform practice, has become the law of the place, or of the subject matter to which it relates: Bouv. Law. Dic. "custom;" or, as another has it, it is a law not written, established by long usage and the consent of our ancestors. Jacob Law Dic. custom." A particular custom is distinguished from a rule of the common law in this: that the latter is universal, while the former is particular to this or that place: Broom's Maxims, 3 London Ed. 823-4; and it is distinguished from usage in this, that custom is the rule of which usage is the legal evidence. Read v. Rann, 10 B. and C. 440.

So far as particular customs only go to explain the meaning of terms of art, or words employed in certain occupations, or to prescribe rules for the transaction of particular kinds of business, they are generally, if well established, easily susceptible of proof, and not

1. That it have been used so long, that the memory of man runneth not to the contrary. So that, if any one can shew the beginning of it, is no good custom. For which reason no custom can prevail against an express act of [*77] *parliament, since the statute itself is a proof of a time when such a custom did not exist. (i)

(i) Co. Litt. 114.

opposed to sound policy. Every trade, profession and occupation has rules of its own which, those who follow it expect to comply with, and in reference to which they make their contracts; and it is not uncommon that words used by them in reference to their employment are employed by them in a sense quite distinct from that which they bear generally. See Spartoli v. Benecke, 10 C. B. 212; Lucas v. Bristow, E., B. and E. 907; Brown v. Byrne, 3 E. and B. 703; Robertson v. Money, Ry. and M. 75. The usages of a particular occupation, if they become general, will be taken notice of as a part of the common law, and require no proof; like the usage in banking that depositors, instead of being compellable to receive all that is owing them at once, like creditors generally, may withdraw their funds in such sums as they may choose. Munn v. Burch, 25 Ill. 35. In such a case the parties whose dealings may be affected by the custom, are not at liberty to relieve themselves from its operation by showing their ignorance of it. But particular usages must be collected from evidence in pais, and the existence of the custom provable by them is to be found as a fact by the jury. If for a considerable period a certain business has been conducted in a particular way, or if all the persons engaged in a certain occupation in one place have, for a considerable time, used particular words in their contracts in a certain sense only, a jury may fairly infer that any contract made in that business, or at that place, has been made in reference to this usage, and in the expectation that its terms would be controlled by it, and therefore may interpret the contract in the light of the usage. Coit v. Commercial Ins. Co., 7 Johns. 385; Astor v. Union Insurance Co., 7 Cow. 202; Niagara Fire Ins. Co. v. De Graff, 12 Mich. 125; Avery v. Stewart, 2 Conn. 69; Gordon v. Little, 8 S. and R. 533; Syers v. Jonas, 2 Exch. 111; Cuthbert v. Cumming, 10 Exch. 809, and 11 Exch. 405; Ford v. Tyrrell, 9 Gray, 401; Taylor v. Sonora, &c., Co. 17 Cal. 594; Parker v. Ibbotson, 4 C. B., N. S. 346; Field v. Lelean, 6 H. and N. 617; Goodenow v. Tyler, 7 Mass. 37; Dwight v. Whitney, 15 Pick. 179; City Bank v. Cutler, 3 Pick. 414. The custom in such a case becomes the law of the contract, because it is to be presumed that such was the intention of the parties. See further Humfrey v. Dale, 7 E. and B. 266; Williams v. Gilman, 3 Greenl. 276; Gunther v. Atwell, 19 Md. 157; Kilgore v. Buckley, 14 Conn. 363; Miller v. Tetherington, 7 H. and N. 954; Smith v. Wilson, B. and Ad. 728; Garrison v. Perrin, 2 C. B., N. S. 681; Robertson v. Clark, Í Bing. 445; Jones v. Fales, 4 Mass. 245; Thompson v. Hamilton, 12 Pick. 425; Macy v. Whaling Ins. Co., 9 Metc. 354; Putnam v. Tillotson, 13 Metc. 517; Uhde v. Waters, 3 Camp. 16; Grinman v. Walker, 9 Iowa, 426; Bank of Washington v. Triplett, 1 Pet. 25; Mills v. Bank of U. S., 11 Wheat. 431.

These particular usages, however, cannot generally be enforced against a party who was ignorant of them, and whose assent to them, consequently, cannot fairly be implied. A merchant, for instance, cannot charge his customer interest on a running account on the ground of a usage at his store to do so, unless he can bring home to such customer a knowledge of such usage; and even if it were customary for all the merchants of the place to charge interest on such accounts this custom could not bind in the absence of direct proof of knowledge by such customer, unless it was "so well settled, so uniformly acted upon, and of so long a continuance as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to conformity with it." Foye v. Leighton, 22 N. H. 76. See also Clayton v. Grigson, 5 A. and E. 302; Stevens v. Reeves, 9 Pick. 108; Martin v. Maynard, 16 N. H. 167; Smith v. Gibbs, 44 N. H. 348; Coxe v. Heisley, 19 Penn. St. 245; Caldwell v. Dawson, 4 Met. Ky. 121; Walker v. Barron, 6 Minn. 508; Warnersley v. Dally, 26 L. J. Exch. 219; Humphreysville Copper Co. v. Vermont Copper Mining Co., 33 Vt. 92; Bissell v. Ryan, 23 Íll. 570; Register v. Spencer, 24 Md. 520; Sípperly v. Stewart,

50 Barb. 62.

One well understood and very definite limitation upon such customs is this: that they will not be allowed to control a written instrument in opposition to its express terms. They are allowed to be proved, not to contradict the contract, but to interpret the meaning of its language, or to ascertain the nature and extent of the contract, in the absence of express stipulations, and where the meaning is equivocal or obscure. Schooner Reeside, 2 Sumn. 569; Cutler v. Powell, 6 T. R. 320; Notes to Wigglesworth v. Dallison, 1 Smith Lead. Cases, 821; Vallance v. Dewar, 1 Camp. 503; Beals v. Terry, 2 Sandf. 130; Taylor v. Ketcham, 5 Rob. 507; Boardman v. Spooner, 13 Allen, 359. As they are only enforced upon a presumption that the parties adopted them in their contracts, it is very plain that they are not admissible in any case where the contract by its terms excludes the presumption, Roberts v. Walker, 1 C. and M. 808; Dickinson v. Gray, 7 Allen, 29; Martin v. Maynard, 16 N. H 165; Wheeler t. Newbould, 16 N. Y. 392; Lewis v. Thatcher, 15 Mass. 431; Hooper v. Pound, 10 Ind. 32; Macomber v. Parker, 13 Pick. 175; Carkin v. Savory, 14 Gray, 528; Insurance Cos. v. Wright, 1 Wal. 470. Decisions on this subject are far too numerous to be all cited; nor is it important, since they only apply to the varying circumstances of particular cases the same general rule.

2. It must have been continued. Any interruption would cause a temporary ceasing the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom. () As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.

(3) Co. Litt. 114.

Nothing relating to these particular customs is more noticeable in the judicial decisions than the strong repugnance of the courts to sustaining them, when they go to vary the common law obligations of parties, or to subject them to liabilities which depend on the customs alone. This is not to be wondered at when we reflect how often the very existence of the usage depends upon conflicting testimony, so that the court, when a verdict is found sustaining it, cannot feel entire confidence that the parties contracted in reference to the usage, nor that the court is not enforcing as the law of the contract some practice supposed to have been assented to, but of which one of the parties may never have heard. The following cases will illustrate the truth of our statement: Rogers v. Mechanics Ins. Co., 1 Story, 608; Schooner Reeside, 2 Sumn. 569; Dickinson v. Gay, 7 Allen, 37; Stoever v. Whitman's Lessee, 6 Binn. 416; Caldwell v. Dawson, 4 Met. Ky. 121; Howev. Mutual Safety Ins. Co., 2 Sandf. 130. Coxe v. Heisley, 19 Penn. St. 245; Bissell v. Ryan, 23 Ill. 566.

Mr. Broome says, following Blackstone and the earlier writers, that if one can show its commencement it is no good custom. However true this may be as regards the local customs which establish rights in favor of parties irrespective of contracts, it is clear that it can have no application to the usages which go to interpret the contracts the parties have made. In respect to these it is only necessary that they shall have existed a sufficient length of time without interruption, contention or dispute, to raise a presumption that contracts must have been made in reference to them. Smith v. Wright, 1 Caines, 43; Bartow v. McKelway, 2 N. J. 165. The usages of a new business may soon become fixed and understood, if but few persons are engaged in it who uniformly transact it in a particular way. See Nobell v. Kennaway, Doug. 510; Dorchester and Milton Bank v. New England Bank, 1 Cush. 188.

That the usage must be certain, see Blewett v. Tregoning, 3 A. and E. 555; Padwick v. Knight, 7 Exch. 854; Strong v. Grand Trunk Railway Co., 15 Mich. 221; Wallace v. Morgan, 23 Ind. 408; Wilson v. Willes, 6 East, 121.

The question of the reasonableness of a usage is a question of law for the court: Bowen v. Stoddard, 10 Met. 381; Bourke v. James, 4 Mich. 338; and "the court will not enforce it, or give it the sanction of law, unless it be reasonable and convenient, and adapted not only to increase facilities in trade, but to the promoting of just dealing in the intercourse between parties." Per Hubbard, J., in Macy v. Whaling Ins. Co., 9 Met. 363. A custom that the master of a stranded vessel may sell without necessity is unreasonable and void. Bryant v. Commercial Ins. Co., 6 Pick. 131. So is one that makes the owners of vessels responsible as acceptors on bills drawn by the master, and which have been negotiated on the assumption that the funds were needed for supplies aud repairs. Bowen v. Stoddard, 10 Met. 381. So is one that seamen's advance wages due under shipping articles, shall be paid to the shipping agent, to be paid by him to the boarding house keeper bringing the seamen. Metcalf v. Weld, 14 Gray, 210. And see Sweeting v. Pearce, 7 C. B., N. S., 449; Miller v. Pendleton, 8 Gray, 547; Holmes v. Johnson, 42 Penn. St. 159. So is a custom for the inhabitants of a town to take a profit in alieno solo. Grimstead v. Marlowe, 4 T. R. 717; Perley v. Langley, 7 N. H. 233; Nudd v. Hobbs, 17 N. H. 527. So is any usage that is opposed to the general law of the state on the subject to which it refers; as, for instance, if it give usurious interest on contracts: Green v. Tyler, 39 Penn. St. 361; Dunham v. Dey, 13 Johns. 40; Dunham v. Gould, 16 Johns. 377; Bank of Utica v. Wager, 2 Cow. 712; Pratt v. Adams, 7 Paige, 615; Delaplaine v. Crenshaw, 15 Gratt. 457; or would defeat the purpose of the state inspection laws. Tremble v. Crowell, 17 Mich. 493. And in any case where the statute has defined a word in reference to its use in contracts, usage cannot be allowed to give it a different meaning. Many v, Beekman Iron Co., 9 Paige, 188.

The most serious question pertaining to usages is, whether they are admissible in any case when they oppose or alter a general principle or rule of law, and upon a fixed state of facts would make the legal rights or liabilities of the parties other than they are by the common law. We think we are justified by the authorities in answering this question in the negative. "Nothing," says Ch. J. Gibson, "should be more pertinaciously resisted than those attempts to transfer the functions of the judge to the witnesses' stand, by evidence of customs in derogation of the general law, that would involve the responsibilities of the parties in rules whose existence, perhaps, they had no reason to suspect before they came to be applied to their rights." Bolton v. Coulter, 1 Watts. 360: and see Coxe v. Heisley, 19 Penn. St. 247; Weth

3. It must have been peaceable, and acquiesced in; not subject to contention and dispute. (k) For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable; (1) or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says, (m) to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. Upon which account custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his, and then the tenants will lose all their profits. (n)

*5. Customs ought to be certain. A custom, that lands shall descend [*78] to the must worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good. (0) A custom to pay two-pence an acre in lieu of tithes, is good; but to pay sometimes two-pence, and sometimes three-pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum reddi potest. 6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated towards the maintenance of a bridge, will be good; but a custom that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all. (k) Ibid.

(1) Litt. § 212.

(m) 1 Inst. 62.

(n) Co. Copyh. § 33.

(0) 1 Roll. Abr. 565.

erill v. Neilson, 20 Penn. St. 453. "Though usage," said Ch. J. Kent, "is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to contradict a settled rule of commercial law." Frith v. Baker, 2 Johns. 335. See further, Thompson v. Ashton, 14 Johns. 317; Woodruff v. Merchants' Bank, 25 Wend. 673; Otsego County Bank v. Warren, 18 Barb. 290; Hunton v. Locke. 5 Hill, 437; Bowen v. Newell, 8 N. Y. 190; Freeman v. Loder, 11 A. and E. 589; Homer v. Dorr, 10 Mass. 29; Eager v. Atlas Ins. Co. 14 Pick. 141; Perkins v. Franklin Bank, 21 Pick. 483; Strong v. Bliss, 6 Met. 393; Richardson v. Copeland, 6 Gray, 536; Brown v. Jackson, 2 Wash. C. C. 24; Steward v. Scudder, 4 Zab. 96; West v. Ball, 12 Ala. 347; Beckwith v. Farnum, 5 R. I. 221; Ripley v. Cooper, 47 Me. 370; Harper v. Pound, 10 Ind. 32; Barlow v. Lambert, 28 Ala. 710. Boardman v. Spooner, 13 Allen, 360. "The proper office of a custom or usage in business is to ascertain and explain the intent of the parties; and it cannot be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, nor against the established principles of law." Per Breese, J., in Bissell v. Ryan, 23 Ill. 570. A commercial usage is a long and uniform practice, applied to habits, modes, and courses of dealing. It relates to modes of action, and does not comprehend the mere adoption of certain peculiar doctrines or rules of law. It may operate to give effect to contracts different from that which the common law would have done, but the consequent variation of the legal rights of the parties is only the result of the mode of dealing. The adoption, however, of a mere doctrine as to the rights and obligations of the parties under a contract, which doctrine is contrary to the rule of the common law on the subject, as, for instance, that a warranty should be implied in a sale of chattels where the common law implied none: Coxe v. Heisley, 19 Penn. St. 243; Wetherill v. Neilson, 20 Penn. St. 448; Dickinson v. Gay, 7 Allen, 29; Tremble v. Crowell, 17 Mich. 493; or that a warranty should not exist where the common law implies one: Whitmore v. South Boston Iron Co., 2 Allen, 52; is beyond the province of a commercial usage. The distinction has been well said to be somewhat nice per Chapman, J., in Dickinson v. Gay, 7 Allen, 37; and it certainly has not always been kept in view; but it is believed to be sound, and, if adhered to, will tend to uniformity in the law, and to protect parties against usages of uncertain character and doubtful propriety.

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