Custom

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. 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 pf pasture in a certain close, or the like. 2 Bl. Comm. 263. General customs are such as constitute a part of the common law, and extend to the whole country. Particular customs are those which are confined to a particular district.

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.

A usage or practice of the people, which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject-matter to which it relates. Adams v. Insurance Co., 95 Pa. 355, 40 Am. Rep. 662; Lindsay v. Cusimano (C. C.) 12 Fed. 504; Strother v. Lucas, 12 Pet. 445, 9 In Ed. 1137; Minis v. Nelson (C. Ct) 43 Fed. 779; Panaud v. Jones, 1 Cal. 498; Hursh v. North, 40 Pa. 241. A law not written, established by long usage, and the consent of our ancestors. Termes de la Ley; Cowell; Bract fol. 2. If it be universal, it is common law; if particular to this or that place, it is then properly custom. 3 Salk. 112. Customs result from a long series of actions constantly repeated, which have, by such repetition, and by uninterrupted acqui-escence, acquired the force of a tacit and common consent. Civll Code La. art. 3. It differs from prescription, which is persona] 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. The distinction has been thus expressed: "While prescription is the making of a right, custom is the making of a law." Lawson, Usages & Oust. 15, note 2. Classification. Customs are general, local or particular. General customs are such as prevail throughout a country and become the law of that country, and their existence is to be determined by the court. Bodfish v. Fox, 23 Me. 95; 39 Am. Dec. 61L Or as applied to usages of trade and business, a general custom is one that is followed in all cases by all persons in the same business in the same territory, and which has been so long established that persons sought to be charged thereby, and all others living in the vicinity, may be presumed to have known of it and to have acted upon it as they had occasion. Sturges v. Buckley, 32 Co.nn. 267; Railroad Co. v. Harrington, 192 111. 9, 6i N. Bl 622 ; Bonham v. Railroad Co.., 13 S. O. 267. Local customs are such as prevnil only in some particular district or locality, or in, some city, county, or town. Bodfish v. Fox, 23 Me. 95, 39 Am. Dec. 611; Clough v. Wing, 2 Ariz. 371, 17 Pac. 457. Particular customs are nearly the same, being such as affect only the inhabitants of some particular district. 1 Bl. Comm. 74.

— Customs of London. Certain particular customs, peculiar to that city, with regard to trade, apprentices, widows, orphans and a variety of other matters ; contrary to the general law of the land, but confirmed by act of parliament. 1 Bl. Comm. 75.

— Custom of merchants. A system of customs or rules relative to bills of exchange, partnership, and other mercantile matters, and which, under the name of the "lex mercatona," or "law-merchant," has been ingrafted into and made a part of, the common law. 1 Bl. Comm. 75 ; 1 Steph. Comm. 54; 2 Burrows, 1226, 1228.

— Custom of York. A custom of intestacy in the province of York similar to that of London. Abolished by 19 & 20 Viet. c. 94.—Customs and services annexed to the tenure of lands are those which the tenants thereof owe unto their lords, and which, if withheld, the lord might anciently have resorted to "a. writ of customs and services" to compel them. Cowell. But at the present day he would merelv proceed to eject the tenant as upon a forfeiture, or claim damages for the subtraction. Brown.

— Special custom. A particular or local custom; one which, in respect to the sphere of its observance, does not extend throughout the entire state or country, but is Confined to some particular district or locality. 1 Bl. Comm. 67; Bodfish v. Fox, 23 Me. 95, 39 Am. Dec. 6il.

A law, not written, established by long usage and consent If it is universal, and_80 a part of the common Jaw, it is. a ggperal. custom; if it is confined to a certain place, it is a particular custom, which, to be valid, must have been peaceable, reasonable, certain, compulsory, consistent with other customs, and continued without interruption so long that the memory of man runneth not to the contrary. Custom of merchants: a system of customs relative to bills of exchange, partnership, and other mercantile matters, and which, under the name of lex mercatoria, or law merchant, has been made a part o€ the common law. v. Law merchant.

In English law. Customs of London: particular customs wtthin the In old English law. Customs and services: services which the tenants of lands, under the feudal law, owed to their lords, and which, if withheld, the lord might compel by resort to the writ of customs and services, v. De consuetudinibus et sermtiis.

8 That length of usage which has become law; a usage which has acquired the force of law. Often used synonymously with "usage." 9 A law established by long iisage. A universal custom becomes common law.i* " The law or rule which is not written, and which men have used for a long time, supporting themselves by it in the things and >1B1. Com. 303; 3 id. 437. ' [People V. Burr, 41 How. Pr. 896 (1871). 1 [Gilman v. Williams, 7 Wis. *334 (1859). <3B1. Com. 12,146. *Buck V. Colbath, 3 V7all. 341 (1865), cases. • Keely v. Sanders, 99 U. S. 442 (1878). ' Smith V. Commonwealth, 59 Pa. 324 (1868). 6F. custume; L. L. costuma: con, together, very; suere, to make one's own — have it one's own way,

— Skeat. Compare Customs; Consuetudo. » Walls V. Bailey, 49 N. Y. 471 (1872), Polger, J.; Hursh reasons with respect to which they have exercised it."i "Usage," strictly speaking, is the evidence of a "custom." ^ "Custom " is the making of a law; " prescription," the making of a right. ^ Customary. Originating in long usage: as, customary incidents or rights; customary dispatch, q. v.; customary estate, freehold,* service,^ tenant;* customary law: common law. General customs. The universal rule of the whole kingdom, forming the common law, in its stricter and more usual signification. Particular customs. Such as, for the most part, affect only the inhabitants of particular districts;S a local or special custom. A general custom is a general law.' "General" customs are such as prevail throughout a country and become the law of the country. " Particular " customs are such as prevail in some county, city, town, or other place. 8 The chief comer-stone of the laws of England is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among the public records, explained in the reports, and digested for general use by the sages of the law... Our practice is to make custom of equal authority with the written law,— when it is not contradicted by that law. " For, where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly? ".. It is one of the 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.* See Law, Common. Particular customs are doubtless the remains of that multitude of local customs out of which the common law was collected, at first by Alfred. For reasons that have been long forgotten, particular counties, cities, towns, and manors were indulged with the privilege of abiding by their own customs. Such, for example, are the customs of London. These particular customs must be proved to exist, and appear to be: legal, that is, be immemorial; coi^tinued— the right imintei Tupted; peaceable— acquiesced in; reason- > Strother v. Lucas, 12 Pet. *446 (1838). 2 See 3 Pars. Contr. 239. * Lawson, Usages & Customs, 15, n. 3. * 2 Bl. Com. 149. * 3 Bl. Com. 234. » 1 Bl. Com. 67. ' United States v. Arredondo, 6 Pet. 715 (1832). able — no suf Boient legal reason be assignable against j the custom; certain — ascertained or ascertainable; compulsory — not left to one's option, to use or not to use; and consistent — witli each other, if not, then they could never have been assented to. Customs In derogation of the common law are strictly construed.' In few States do any purely local customs, such as have just been explained, exist. And such customs are to be carefully distinguished from "usages of trade or business." These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is permitted to explain the meaning of ambiguous words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But It is never admitted against the expressed agreement of the parties, nor in violation of any statute or wellestablished rule of law. The current of decisions of late years has been to restrain and limit the allowance and influence of special usages.' The courts take judicial notice of general customs. Particular or special customs are to be alleged and proved.^ Evidence of a temporary custom of which the party to be affected has no knowledge is not admissible against him.* Where the object is to interpret a contract it is not necessary to prove all the elements of a custom necessary to make a law.^ To establish the validity of a custom the usage must have existed so long as to become generally known, and it must be clearly and distinctly proved. The concurrent testimony of a large number of witnesses increases the probab Uity of its being generally known. This is illustrated in the case of a custom which authorizes the captain of a steamboat to insure it for the beneflt of the owner without his express direction."* Evidence of a custom or usage of trade is resorted to in order to ascertain and explain the meaning and intention of the parties to a contract: on the theory that they knew of its existence and contracted with reference to it. It is never received if it is inconsistent with the contract, if it contradicts or varies directly or by necessary implication express stipulations, if it would subvert a settled rule of law, or if there is no contract in reality.' See Eingino Up. > 1 Bl. Com. 70-79; Liiidsay v. Cusimano, 12 F. R. 506 (1882); nOU. S. 499. « 1 Shars. Bl. Com. 78; Coxe v. Heisley, 19 Pa. 246-^ (1852), cases, Black, C. J. » 1 Greenl. Ev. § 5; 1 Whart. Ev. §§ 298, 331. 1 Wootters v. Kauffman, 67 Tex. 493 (1887), cases. » Carter v. Philadelphia Coal Co., 77 Pa. 290 (1875); Morningstar v. Cunningham, 110 Ind. 333-35 (1886), cases; 1 Cooley, Bl. Com. 76, note. •Adams V. Pittsburgh Ins. Co., 95 Pa. 855-56 (1880), ' Bliven V. Screw Company, 23 How. 431 (1859); Insurance Companies v. Wright, 1 Wall. 470-72 (1863); The unoontradiotod testimony of one witness may be sufficient to establish a custom.' Customary rights and incidents are such as universally attach to the subject-matter of a contract in the place where the contract is made. These also are impliedly annexed to the terms of a contract imless expressly excluded." See Use, 2, Usage; Usus, Mains usus, etc. Custom of merchants. A system of customs, originating among merchants, and allowed for the benefit of trade as part of the common law. Of such are certain rules relating to bills of exchange (as, that of allowing days of grace), to mercantile contracts, to the sale, pm'chase, and barter of goods, to freight, insurance, shipping, partnerships.' Constitutes the lex mercatoria or law merchant. See Merchant, Law. Customs of London. Particular customs relating chiefly to trade, apprentices, widows, orphans, and local government. Good only by special usage; and tried by the certificate of the mayor and alderman, by the mouth of their recorder.*

[L. Fr. coutume, custome; Lat. consuetfido,] A law, not written, established by long iisage, and the consent of our ancestors. Termes de la ley, Cowell, Bract, fol. 2. K it be universal, it is common law; if particular to this or that place, it is then properly eustom. 3 Salk, 112. The requisites to make a particular custom valid are, (1) it must have been used so long that the memory of man runneth not to the contrary; (2) it must have been continued; {Z) peaceable; {i) reasonable; (5) certain; and (6) compulsory, that is, not left to the option of any man whether he will use it or not. (1) Customs must also be consistent with each other. 1 Stepk. Com. 56—68. 1 Bl. Com. 76— Y8. Co. Litt. 110 b. 3 Ad. <k Ell. 654. See 2 HiU Hard's Real Prop. 1 53. U. S. Digest and Supplement, Custom and usage. The distinction between custom and prescription is, that the former is common to many; the latter peculiar to an individual. Termes de la ley. In other words, custom is local; prescription is personal. 4 Co. 32. 2 Bl. Com. 263. See Consuefudo. Custom also signifies a toll or tribute, and the service of a tenant to his lord, but in these senses it usually occurs in the plural. See Customs. Caato Me aerrs pri«« •tricC«. Custom shall be taken [is to be construed] strictly. Jenk. Cent. 83.