the demising part, to prove that it was not executed by

them all.1

§ 247. Where issue is joined on a plea of performance, the defendant assumes the burden of proof, and therefore is ordinarily entitled to open and close the case.2

1 Wilson v. Woolfryes, 6 M. & S. 341.

2 Scott v. Hull, 8 Conn. 296. And see ante, Vol. 1, § 74.

*21*

CUSTOM AND USAGE.

§ 248. CUSTOM is unwritten law, established by common consent and uniform practice, from time immemorial; and it is local, having respect to the inhabitants of a particular place or district. It differs from Prescription, in this, that prescription is a personal right, belonging to one or a few persons, by particular designation, as for example, the owners of a certain parcel of land. The term, Usage, in its broadest sense, includes them both; but is ordinarily applied to trade; designating the habits, modes, and course of dealing, which are generally observed, either in any particular branch of trade, or in all mercantile transactions.

§ 249. We have already seen,1 that, in general, when a local custom, of a public or general nature, is once established by a judgment, the judgment is competent evidence of the existence of the custom, in all other cases, though the parties may be different. Hence no person is a competent witness to prove a local custom, stated on the record, who would derive a benefit from its establishment. But in regard to the proof of usages in any particular trade, persons employed in the particular trade are held competent witnesses, as standing indifferent; the usage in question generally affecting alike both their rights and their liabilities. These usages, also, when once put in issue and found by a Jury, are afterwards recognized on production of the record; and after having been frequently proved, in the course of successive legal

investigations, they are taken notice of by the Courts, without farther proof. They are not, however, permitted to have effect, when they contravene any established general rule of the law; and therefore evidence, in proof of any such usage, is ordinarily inadmissible.2 The general law-merchant, being part of the Common Law, is recognized by the Courts without proof.3

§ 250. In proof of a local custom, it must be shown to have existed from time immemorial; to have continued without any interruption of the right, though the possession may have been suspended; to have been peaceably acquiesced in; and to be reasonable, certain, consistent with law and with other acknowledged customs, and compulsory on all. The existence of a custom, in one place, is not admissible in proof of its existence in another; unless where the custom has respect to some general subject common to them both, to which it is merely an incident, such as a general. tenure, and the like. But where the question is upon the manner of conducting a particular branch of trade at one place, evidence of the manner of conducting the same branch at another place is admissible; being deemed to fall

1 Ante, Vol. 1, § 5; Smith v. Wright, 1 Caines, 43; Consequa v. Willing, 1 Pet. C. C. R. 230; Thomas v. Graves, 1 Const. Rep. 150, [308.]

2 Edie v. The East India Co., 2 Burr. 1216, 1222; Homer v. Dorr, 10 Mass. 26, 29; Lewis v. Thacher, 15 Mass. 431; Higgins v. Livermore, 14 Mass. 106; Randall v. Rotch, 12 Pick. 107; Eager v. The Atlas Ins. Co. 14 Pick. 141; Perkins v. The Franklin Bank, 21 Pick. 483; Bryant v. Com'th Ins. Co. 6 Pick. 131; The Reeside, 2 Sumn. 568; Bolton v. Colder, 1 Watts, 360; Newbold v. Wright, 4 Rawle, 195; Stoever v. Whitman, 6 Binn. 417; Brown v. Jackson, 2 Wash. C. C. R. 24; Prescott v. Hubbell, 1 McCord, 94.

3 2 Burr. 1216, 1222.

4 1 Bl. Comm. 76-78. And see Freary v. Cook, 14 Mass. 488; Clayton v. Corby, 8 Jur. 212; 2 Ad. & El. 813, N. S.; Carr v. Foster, 3 Ad. & El. 581, N. S.; Hilton v. E. of Granville, Dav. & Mer. 614; 5 Ad. & El. 701, N. S.; Elwood v. Bullock, 6 Ad. & El. 383, N. S.

5 Furneaux v. Hutchins, Cowp. 808; D. of Somerset v. France, 1 Stra. 654, 661, 662.

within the exception to the rule, as it concerns a matter, in its nature common to both places.1 So, evidence as to the profits of mines, or the right to dig turf in fenny lands, in one manor, has been admitted in proof of the same right claimed in another, the subject being the same.2

§ 251. But in regard to the usage of trade, it is not necessary that it should have existed immemorially; it is sufficient if it be established, known, certain, uniform, reasonable, and not contrary to law. These usages, many Judges are of opinion, should be sparingly adopted by the Courts, as rules of law, as they are often founded in mere mistake, or in the want of enlarged and comprehensive views of the full bearing of principles. Their true office is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts arising not from express stipulation, but from mere implications and presumptions, and acts of a doubtful and equivocal character; and to fix and explain the meaning of words and expressions of doubtful or various senses.5 On this principle, the usage or habit of trade or conduct of an individual, which is known to the

1 Noble v. Kennoway, 2 Doug. 510.

2 Dean, &c. of Ely v. Warren, 2 Atk. 189, per Ld. Hardwicke.

31 Bl. Comm. 75; Todd v. Reid, 4 B. & Ald. 210; Collings v. Hope, 3 Wash. 150; Rapp v. Palmer, 3 Watts, 178; Trott v. Wood, 1 Gall. 443; Stultz v. Dickey, 5 Binn. 287; Winthrop v. Union Ins. Co. 2 Wash. C. C. R. 7; United States v. M'Daniel, 7 Pet. 1; Lowry v. Russel, 8 Pick. 360; Parrott v. Thacher, 9 Pick. 426; Stevens v. Reeves, Id. 198; Thomas v. Graves, 1 Const. Rep. 150, [308]; Desha v. Holland, 12 Ala. 513.

42 Sumn. R. 377, per Story, J.; Hone v. Mutual Safety Ins. Co. 1 Sandf. S. C. R. 137.

5 The Reeside, 2 Sumn. 569; Macomber v. Parker, 13 Pick. 182; Shaw v. Mitchell, 2 Met. 65; Coit v. Commercial Ins. Co. 7 Johns. 385; Harris v. Nicholas, 5 Munf. 483; Allegre v. Maryland Ins. Co. 2 G. & J. 136. See also ante, Vol. 1, § 292; Powley v. Walker, 5 T. R. 373; Roe v. Charnock, Peake's Cas. 5; Rex v. Navestock, 6 Burr. 719, (Set. Cas.) Evidence of usage is also admissible to establish a right above and beyond the contract; even though the contract is by deed. Wigglesworth v. Dallison, 1 Doug.

person who deals with him, may be given in evidence to prove what was the contract between them.1

§ 252. Both customs and usages must be proved by evidence of facts, not of mère speculative opinions; and by witnesses who have had frequent and actual experience of the custom or usage, and do not speak from report alone.2 The witnesses must speak as to the course of the particular trade; they cannot be examined to show what is the law of that trade. And though a usage is founded on the laws or edicts of the government of the country where it prevails, yet still it may be proved by parol. It has also been held, that the testimony of one witness alone, is not sufficient to establish a usage of trade, of which all dealers in that line of trade are bound to take notice.5

1 Loring v. Gurney, 5 Pick. 15; Naylor v. Semmes, 4 G. & J. 274; Noble v. Kennoway, 2 Doug. 510.

2 Edie v. E. Ind. Co. 2 Burr. 1228, per Wilmot, J.; Savill v. Barchard, 4 Esp. 54, per Ld. Kenyon; Austin v. Taylor, 2 Ohio R. 282.

3 Ruan v. Gardiner, 1 Wash. C. C. R. 145; Winthrop v. Union Ins. Co. 2 Wash. C. C. R. 7; Austin v. Taylor, 2 Ohio R. 282.

4 Livingston v. The Maryland Ins. Co. 7 Cranch, 500, 539; Drake v. Hudson, 7 H. & J. 399.

5 Wood v. Hickok, 2 Wend. 501; Parrott v. Thacher, 9 Pick. 426 Thomas v. Graves, 1 Const. Rep. 150, [308.]