Custom

Such a usage as by common consent and uniform practice bas become the law of the place, or of tbe subject-matter, to which it relates. Custom is a law established by long usage.

Wilcox v. Wood, 9 Wend. (N. Y.) 349. See Pollock, 1st Bk. of Jurispr. 263.

It differs from prescription, which is personal and is annexed to the person of the owner of a particular estate; while the other is local, and relates to a particular district. An instance of the latter occurs where the question is upon the manner of conducting a particular branch of trade at a certain place; of the former, where a certain person and his ancestors, or those whose estates he has, have been entitled to a certain advantage or privilege, as to have common of pasture in a certain close, or the like.

2 Bla. Com. 263.

The distinction has been thus expressed: "While prescription is the making of a right, custom is the making of a law;" Laws. Us. & Cust. 15, n.

2..

General customs are such as constitute a part of the common law of the country and extend to the whole country. Particular customs are those which are confined to a particular district; or to the members of a particular class; the existence of the former are to be determined by the court, of the latter, by tbe jury.

Laws. Us. & Cust. 15, n. 3; see Bodfish v. Fox, 23 Me. 90, 39 Am. Dec. 611.

In general, when a contract is made in relation to matter about which there is an established custom, such custom is to be understood as forming part of the contract, and may always be referred to for the purpose of showing the intention of the parties in all those particulars which are not expressed in the contract; 2 Pars. Contr. 652, 603; Fulton Bank oT New York v. Benedict, 1 Hall (N. Y.) 602; Van Ness v. Pacard, 2 Pet. (U. S.) 138, 7 L. Ed. 374; Stultz v. Dickey, 5 Binn. (Pa.) 285, 6 Am. Dec. 411; 1 M. & W. 476; L. R. 17 Eq. 358; Robinson v. Fiske, 25 Me. 401; Bragg v. Bletz, 7 D. C. 105. Evidence of a usage is admissible to explain technical or ambiguous terms; 3 B. & Ad. 728; Lane v. Bank, 3 Ind. App. 299, 29 N. E. 613; Nonantum Worsted Co. v. Mfg. Co., 156 Mass. 331, 31 N. E. 293. But evidence of a usage contradicting the terms of a contract is inadmissible; 2 Cr. & J. 244; Brown v. Foster, 113 Mass. 136.

18 Am. Rep. 463; Farmers' & Mechanics' Nat. Bank of Buffalo v. Logan, 74 N. Y. 586; Exchange Bank of Virginia v. Cookman, 1 W. Va. 69; Gilbert v. Mc Ginnis, 114 111. 28, 2S N. E. MS2; De Cernea v. Cornell, 1 Misc. 399, 20 N. Y. Supp. 895; Globe Milling Co. v. Elevator Co., 44 Minn. 153, 46 N. W. 306.

Nor can a local usage affect the meaning of the terms v. Blake, 144 U. S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510; nor can it affect a contract made elsewhere; Insurance Co. of North America v. Ins. Co., 140 U. S. 5G5, 11 Sup. Ct. 909, 35 L. Ed. 517. "Merely that it varies tbe apparent contract is not enough to exclude the evidence, for it is impossible to add any material incident to the written terms of a contract, without altering its effect more or less. To fall within the exception of repugnancy the incident must be such as, if expressed in tbe written contract, would make it insensible or inconsistent;" Per cur. in 3 E. & B. 715.

See Leake, Contr. 197; 7 E. & B. 274.

In order to establish a custom, it will be necessary to show its existence for so long a time that "the memory of man runneth not to the contrary," and that the usage has continued without any interruption of the right; for, if it has ceased for a time for such a cause, the revival gives it a new beginning, which will be what the law calls within memory. It will be no objection, however, that tbe exercise of the right has been merely suspended.

1 Bla. Com. 76; 2 id. 31; Freary v. Cooke, 14 Mass. 488; L. R. 7 Q. B. 214; Ulmer v. Farnsworth, 80 Me. 500, 15 Atl. 05. See Hyde v. News Co., 32 Mo. App. 29S.

It must not have begun within legal memory, i. e, A. D. 1189; L R. [1905] 2 Ch. 538; but a jury may find an immemorial custom upon proof of a period of twenty years or so; 21 L. J. Q. B. 190. It must also have been peaceably acquiesced in and not subject to dispute; for, as customs owe their origin to common consent, their being disputed, either at law or otherwise, shows that such consent was wanting; Wood v. Hickok, 2 Wend. (N. Y.) 501; Rapp v. Palmer, 3 Watts (Pa.) 178. In addition to this, customs must be reasonable and certain. A custom, for instance, that land shall descend to the most worthy of the owner's blood is void; for how shall this be determined? But a custom that it shall descend to the next male of the blood, exclusive.of females, is certain, and therefore good; 2 Bla. Com. 7S; Browne, Us. & Cust. 21.

See Minis v. Nelson, 43 Fed. 777.

Evidence of usage is never admissible to oppose or alter a general principle or rule of law so as, upon a given state of facts, to make the legal right and liabilities of the parties other than they are by law; Browne, Us. & Cust. 135, n; Stoever v. Whitman's Lessee, 6 Binn. (Pa.) 410; 16 C. B. N. S. 646; Barnard v. Kellogg, 10 Wall. (U. S.) 3S3, 19 L. Ed. 987; Warren v. Ins. Co., 104 Mass. 518; East Birmingham Land Co. v. Dennis, 85 Ala. 565, 5 South. 317, 2 L. R. A. 836, 7 Am. St. Rep. 73; Hopper v. Sage, 112 N. Y. 530, 20 N. E. 350, 8 Am. St. Rep. 771; but the rule is said by Lawson to extend no further than to usages which "conflict with Laws. Us. & Cust. 48G. With respect to a usage of trade, however, it is suflicient if it appears to be known, certain, uniform, reasonable, and not contrary to law; Collings v. Hope, 3 Wash. C. C. 150, Fed. Ca 8,003; U. S. v. MacdanieL 7 Pet. (U. S.) 1, 8 L. Ed. 587; Lowry v. Russell, 8 Pick. (Mass.) 360; -1 B. & Aid. 210; 1 C. & P. 59; Grlssom v. Bank, 87 Tenn. 3.r>0, 10 S. W. 774, 3 L. R. A. 273, 10 Am. St. Rep. 869.

See Pickering v. Weld; 159 Mass. 522, 34 X. E. 1081.

But if not directly known to the parties to the transaction, it will still be binding upon them if it appear to be so general and well established that knowledge of it may be presumed; Smith v. Wright, 1 Cai. (N. Y.) 43, 2 Am. Dec. 1G2; 4 Stark. 452; 1 Dougl. 510. A usage of trade is sufficiently long continued if it has existed so long as to show that the parties to a contract meant fc> employ the expression in the Bense defined by it; Hyde v. News Co., 32 Mo. App. 298. And one who seeks to avoid the effect of a notorious and uniform usage of trade must show that he was ignorant of it; Robertson v. B. S. Co., 139 N. Y. 416, 34 N. E. 1053. Whether a trade custom is established by the evidence in a case, and whether, if so, it was known to the party contracting or was so well established that he must he presumed to have known of it and contracted with reference to it, are questions for the jury; New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed. 296, 83 0/ C. A. 1. Parties to a contract may contract to exclude a custom of trade therefrom; id. To read a usage into a contract, it must be consistent with the terms of the writing; id. In an action for negligence, proof of a custom on the part of engine drivers to uncouple the locomotive and run ahead a short distance was offered to show the measure of duty. It was held that such a custom, to have the force of law, or to furnish a standard for the rights and acts of men, must he certain and uniform and so well known that no man dealing with the subject would be ignorant of it; per Sanborn, C. J., in Chicago, M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18 (C. C. A., Eighth Circuit). A local custom is usage which has obtained the force of law and is in truth the binding law in a particular district or at a particular place of the persons or things that it concerns; 9 A. & E. 421. A local custom, so far as it extends, supersedes the local law; 5 Bingh. 253; but it cannot prevail against an express act of parliament; [1899] App. (as. 41. The particular custom must have been asserted openly and acquiesced in by the persons who were affected and the enjoyment must have been peaceable. It must have been reasonable. It ought to be certain. S. E. 909; Palmer v. Transportation Co., 70 Hun 181, 27 N. Y. Supp. See 26 L. J. Ex. 219; Stevens v. Reeves, 9 Pick. (Mass. i 198J land, 2 Cai. (N. y.i 219; 2 F. ft F. 131; Metcalf v. Weld. 14 Cray (Mass.) 210; Renner v. Bank, 9 Wheat (U. 8.) 582, 6 L. Ed. 166; Gordon v. Little, 8 S. ft B, (Pa.) 533, 11 Am. Dec. 632; Dougl. 201; 4 Taunt. 848; Waring v. Grady's Bx'r, 49 Ala. 465, 20 Am. B Goodenow v. Tyler, 7 Mi 22; I.. B. 'J Ex. 101; Cooper v. Kane, Wend, i X. Y. I 386, 32 Am! Dec i lark, 41 Md. 158, 20 Am. l; Lawsoii; Browne; Da & Cust.; note to Wi glesworth v. Dallison, l Sm. Lea L Cas. 900; [1892] Prob. 411; Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 18 S. E. 816.

See Usage.