[bills of exchange, partnerships, and other mercantile matters, and which body of rules is generally denominated the custom of merchants, or the Law Merchant. As its character, however, is not local, nor its obligation confined to any particular district, it cannot with propriety be considered as a special custom in the technical sense to which we now refer (e); and it is, in truth, a part of the general law of England (ƒ), distinguished specifically or by a separate name, only because it applies, to the particular subjects in question, principles more or less different from those which the common law ordinarily recognizes in other matters (g)]. The usages of particular trades, where not restrained to some particular locality, must also be excluded, and for the same reason, from the technical name of customs. For, if there be any such usage of immemorial observance, authenticated by judicial decisions, it will form, according to our definition, part of the general law of England. If there be any sanctioned by Act of Parliament, it will constitute part of the statute law. But for the rest, the want of any peculiar locality determines these usages to be no customs, and they are consequently no rules of law at all. Yet, as matters of fact, these usages are very necessary to be considered; for, as the prevalence of any certain course of dealing among men leads to the presumption that in particular instances they intend to conform to it, the existence of such usages as these may often bear materially upon the question, whether the parties intended to be bound by them (h).

[The rules relating to particular or special customs regard either the proof of their existence, their validity,

(e) Co. Litt. 115 b.

Edie v.

(f) Per Sir Michael Foster, J., East India Company (1761), 2 Burr. 1226; see also Stone v. Rawlinson (1745), Willes, 561, and Goodwin v. Robarts (1875), L. R. 10 Exch. 346.

(g) The lex mercatoria, or law merchant, is mentioned in some of our earlier statutes. (See 27 Edw. 3 (1353), st. 2, cc. 8, 19, 20.)

(h) Wigglesworth v. Dullison, (1779) 1 Doug. 190.

[and their usual method of allowance when proved. And first, we will consider the rules of proof.

As to gavelkind and Borough-English, the law takes particular notice of them; and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto (i). All other special customs must be expressly pleaded, and their existence must be shown, not merely that the thing in dispute is within the custom alleged. The trial in both cases (to show 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 show, "that the lands in question are within that manor ") is by a jury of twelve men, and not by the judges; unless the same special custom has been before tried, determined, and recorded in the same court (k). But, as regards the customs of London, these, so far as they continue, differ from all others in point of proof. For, if the existence of the custom be brought in question, it shall not be tried by a jury, but by a certificate from the lord mayor and aldermen by the mouth of their recorder (); unless indeed it be such a custom as the corporation is itself interested in, as a right of taking toll, for then the law permits them not to certify on their own behalf (m).

When a custom is actually proved to exist, the next inquiry is into the validity 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 (n). To make a special custom good, the following are necessary requisites :

1. The custom must have been used so long, that the memory of man runneth not to the contrary.] Upon this subject, it is material to recollect, that the time of memory,

(i) Co. Litt. 175.

(4) Dr. & St. 1, 10.

(1) Appleton v. Sloughton, (1635) Cro. Car. 516; Westoby v. Day,

(1853) 2 E. & B. 605.

85.

(m) Day v. Saradge, (1614) Hob.

() Litt. s. 212; 4 Inst. 274.

as regards the validity of a right, or (as it is sometimes expressed) the time of legal memory, has received a peculiar technical limitation, and refers to so remote a date as the commencement of the reign of King Richard the First (o). But this construction, which appears to have been taken, by a rather strained inference, from the wording of an old statute (p), is more properly applicable to claims in the nature of prescription, or individual claims, than to claims founded on the alleged existence of a local custom. And, even with regard to the former, its importance has been very greatly diminished by the Prescription Act of 1832, which will hereafter be explained (q). In cases of claims really founded on local custom, if the commencement of the alleged usage can be proved, it is void as a custom; though, in the absence of such proof, its observance for a long time, and as far back as the evidence reaches, will amount to presumptive proof of its having prevailed during the whole period of legal memory (r).

[2. A custom must also have been continued. Any interruption would cause a temporary ceasing; revival would give it a new beginning, which would be within the time of legal memory, and therefore the custom will be void. But this must be understood with regard to an interruption of the right; for a temporary interruption of the possession only will not destroy the custom (s). For example, 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 exercise the right for ten years; it only becomes more difficult to prove. But if the right be anyhow discontinued, even for a day, the custom is quite at an end.

3. A custom must have been enjoyed peaceably, and not subject to contention and dispute (t). For as customs (0) Co. Litt. 115 a. (r) R. v. Joliffe (1823), 2 B. & C.

[owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. A custom must be reasonable; or rather, taken negatively, it must not be unreasonable (x). Which is not always, as Sir Edward Coke says, to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law (y). Upon which account a 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 show 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 (z).

5. A custom ought to be certain (a). A custom that lands shall descend to the most 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. 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, id certum est quod certum reddi potest.

(r) Wilkes v. Broadbent, (1744) 1 Wils. 63; Marquis of Salisbury v. Gladstone, (1861) 9 H. L. C. 692; Hall v. Nottingham, (1875 1 Ex. D. 1.

(y) Co. Litt. 62 a.

(2) Co. Cop. 3.

(a) Selby v. Robinson, (1788) 2 T. R. 758.

[6. A custom, though established by consent, must (when established) be compulsory; and not left to the option of every man, whether he will use it 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.

7. Lastly, customs must also be consistent with each other; one custom cannot be set up in opposition to another (b). For if both are really customs, then both are of equal antiquity, and both established by mutual consent; which to say of contradictory customs is absurd.] Therefore, if a man should allege that as a fisherman he is entitled, by the custom of a certain place, to dry his nets upon another's land (which, in favour of fishing and navigation, is a reasonable usage), the latter could not allege, in opposition to this, a right by custom to remove the nets when so placed. For these two contradictory customs cannot both be good, nor both stand together (c). But one custom may be subordinate to, and therefore controlled by, another custom; in which case both the customs may well stand together. And, where it is possible to do so, customs that are apparently in conflict must be read so as to stand consistently together (d).

Next, as to the allowance of special customs. No custom can, of course, prevail against the express provisions of an Act of Parliament. But, apart from this restriction, a custom, being in derogation of the general law, must be construed strictly (e). Thus, by the custom

(b) Aldred's Case, (1610) 9 Rep. 58 b; Parkin v. Radcliffe, (1798) 1 Bos. & P. 282.

(c) 1 Roll. Abr. 560; Hickman v. Thorne, (1676) 2 Mod. 104. [The practical result of this rule appears to be, that the party who

pleads his custom first, wins, if he can prove it.]

(d) Bateson v. Green, (1793) 5 T. R. 411.

(e) Arthur v. Bokenham, (1708) 11 Mod. 161; Denn v. Spray, (1786) 1 T. R. 466.