It roust also have been peaceably ac quiesced in and not subject to dispute; for, as customs owe their origin to common con sent, 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 reason able 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 there fore good ; 2 Bla. Com. 78 ; Browne, Us. & Oust. 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 niake 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.) 416; 16 a B. N. S. 646; Barnard v. Kellogg, 10 Wall. (U. S.) 383, 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 an established rule of public policy, which it is not to the general interest to disturb.
Laws. Us. & Oust. 486. With respect to a usage of trade, however, it is sufficient if it appears to be known, certain, uniform; rea sonable, and not contrary to law ; Collings v. Hope, 3 Wash. C. C. 150, Fed. Casa No. 3,003; U. S. v. Macdaniel, 7 Pet. (U. S.) 1, 8 L. Ed. 587; Lowry v. Russell, 8 Pick. (Mass.) 360; 4 B. & Ald. 210; 1 C. & P. 59; Grissom v. Bank, 87 Tenn. 350, 10 S. W. 3 L. R. A. 273, 10 Am. St. Rep. 669. See Pickering v. Weld, 159 Mass. 522, 34 N. E. 1081. But if not directly known to the par ties 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. 162; 4 Stark. 452 ; 1 Dougl. 510. A usage trade is sufficiently long continued if it has existed so long as to show that the parties to a contract meant to em ploy the expression in the sense defined by it; Hyde v. News Co., 32 Mo. App. 298. And one who seeks to avoid the effect of a noto rious and uniform usage of trade must show that he was ignorant of it ; Robertson v. S.
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 es tablished that he must be 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 C. C. A. 1.
Parties to a contract may contract to ex clude a custom of trade therefrom; id. To read a usage into a contract, it must be con sistent with the terms of the writing; id.
In an action for negligence, proof of a custom on the part of engine drivers to un couple 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 stand ard for the rights and acts of men, must be certain and uniform and so well known that no man dealing with the subject would be ignorant of it; per Sanborn, C. J., in Chi cago, 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 con cerns; 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. Cas. 41. The particular custom must have been asserted openly and acquiesced in by the per sons who were affected and the enjoyment must have been peaceable. It must have been reasonable. It ought to be certain. A local custom cannot supersede or modify a statute; Gore v. Lewis, 109 N. C. 539, 13 S. E. 909 ; Palmer v. Transportation Co., 76 Hun' 181, 27 N. Y. Supp. 561.
See 26 L. J. Ex. 219; Stevens v. Reeves, 9 Pick. (Mass.) 198; Seagar v. Sligerland, 2 Cai. (N. Y.) 219; 2 F. & F. 131; Metcalf v. Weld, 14 Gray (Mass.) 210; Renner v. Bank, 9 Wheat. (U. S.) 582, 6 L. Ed. 166; Gordon v. Little, 8 S. & R. (Pa.) 533, 11 Am. Dec. 632 ; Dougl. 201; 4 Taunt. 848; Waring v. Grady's Ex'r, 49 Ala, 465, 20 Am. Rep. 286 ; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22 ; L. R. 2 Ex. 101; Cooper v. Kane, 19 Wend. (N. Y.) 386, 32 Am. Dec. 512 ; Raisin v. Clark, 41 Md. 158, 20 Am. Rep. 66. See Lawson ; Browne; Us. & Cust.; note to Wig glesworth v. Dallison, 1 Sm. Lead. Cas. 900 ; [1892] Prob. 411; Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 18 S. E. 816. See USAGE.