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 par ticular district. An instance of the latter occurs where the question is upon the manner of conduct ing a particular branch of trade at a certain place; of the former, where a certain pereon and his an cestors, or those whose estates he has, have been entitled to a certain advantage or privilege, as to — _ _ have common of pasture in a certain olose, or the like. 2 Blackstooe, 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 con fined to a particular district.
2. In general, when iL contract is made in relation to another, about which there is an established custom, such custom is to be un derstood 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. 1 Hall, N. Y. 602; 2 Pet. 138; 5 Binn. Penn. 285 ; 9 Wend. N. Y. 349 ; 1 Mees. & W. Exch. 476. But if the meaning of the contract is certain and beyond doubt, no evidence of usage will be admitted to vary or contradict it. 13 Pick. Mass. 176 ; 1 Crompt. & M. Exch. 808. As to the effect of usage with respect to agricultural leases, see Taylor, Landl. & T. 541.
3. 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 con tinued 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 the ex ercise of the right has been merely suspended.
1 Blackstone, Comm. 76 ; 2 id. 31; 14 Mass. 488 ; 3 Q. B. 581 ; 6 id. 383.
4. It must also have been peaceably ac quiesced in and not subject to dispute ; for, as customs owe their origin to common con sent, their being immemorially disputed, either at law or otherwise, shows that such consent was wanting. 2 Wend. N. Y. 501 ; 3 Watts, Penn. 178. In addition to this, customs' must be reasonable and certain. A custom, for in stance, 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 Blackstone, Comm. 78.
5. Evidence of usage is never admissible to oppose or alter a general principle or rule of land, so as, upon a given state of facts, to make the legal rights and liabilities of the parties other than they are by law. 2 Term, 327; 19 Wend. N. Y. 252; 6 Mete. Mass. 393 ; 6 Pick. Mass. 131 ; 6 Binn. Penn. 416. With respect to a usage of trade, however, it is sufficient if it appears to be known,. certain, uniform, reasonable, and not contrary to law. 3 Wash. C. C. 150; 7 Pet. 1 ; 5 Binn. Tenn. 287 • 8 Pick. Mass. 360 ; 4 Barnew. & Ald. 210. 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 esta blished that knowledge of it may be pre sumed. 1 Calms, N. Y. 43 ; 4 Stark. 452.
See further, on this subject, Bacon, Abr. ; 1 Lilly, Reg. 516; Comyns, Dig.; Nelson, Abr.; Ayliffe, Pand. 15, 16.; Ayliffe, Parerg. 194; Doctrine Mac. 201 ; 2 Pet. 148 ; 6 id. 715 ; 3 Wash. C. C. 150 ; 1 Gilp. Dist. Ct. 486 ; 1 Pet. C. C. 220 ; 1 Edw. Ch. N. Y. 146 ; 1 Gall. C. C. 443 ; 1 Hill, N. Y. 270 ; 1 Caines, N. Y. 45 ; 15 Mass. 433 ; Wright, Ohio, 573 ; 5 Ohio, 436 ; 1 Nott & M'C. So. C. 176 ; 5 Binn. Penn. 2/37 ; 3 Conn. 9 ; 15 Ala. 123 ; 2 N. H. 93 ; 1 Harr. & G. Md. 239 ; 1 Mart. La. N. s. 192 ; 4 La. 160 ; 7 id. 215, 529.