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*CHAPTER X.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

WE have, in a previous Chapter, investigated those rules of the law of evidence which relate peculiarly to the interpretation of written instruments; it is proposed in these concluding pages, to state some few additional rules which apply to other branches of the same law. Very little, however, has been here attempted beyond a statement and brief illustration of these principles; because, on reflection, it appeared desirable at once to refer the reader to those works of acknowledged authority, which enter at length into the comprehensive and difficult subject of the law of evidence, from which, after a patient consideration of the more important cases there indicated, a clear perception of the extensive applicability of the following maxim can alone be derived.

OPTIMUS INTERPRES RERUM USUS.

(2 Inst. 282.)

Usage is the best interpreter of things.

Custom, consuetudo, is a law not written, established by long usage and the consent of our ancestors ;' and hence, it is said, that usage, usus, is the legal evidence of custom.2 *Moreover, where a [*713] law is established by an implied consent, it is either common law or custom; if universal, it is common law;3 if particular to this or that place, then it is custom. When any practice was, in its origin, found to be convenient and beneficial, it was naturally repeated, continued from age to age, and grew into a law, either local or national. A custom, therefore, or customary law, may be defined L. R. 41; Com. Dig. "Baron and Feme," (2 A.); per Bosanquet, J., Vine v. Saunders, 4 Bing., N. C. 102; E. C. L. R. 33; Howard v. Crowther, 8 M. & W. 601;(*) and per Lord Abinger, C. B., 8 M. & W. 343, 344 ;(*) Rogers v. Spence, 12 Cl. & Fin. 700; S. C., 13 M. & W. 571,(*) and 11 Id. 191. See Sherrington v. Yates, 12 M. & W. 855; (*) reversing Judgments in S. C., 11 M. & W. 42.(*)

1 Jacob, Law Dict., tit. "Custom."

2 Per Bayley, J., 10 B. & C. 440; E. C. L. R. 21.

3 "In point of fact the common law of England, lex non scripta, is nothing but custom;" Judgment, Nunn v. Varty, 3 Curt. 363. But the claim of any particular place to be exempt from the obligation imposed by the common law, may also be properly called a custom. Id. 43 Salk. 112.

to be an usage which has obtained the force of law, and is in truth, the binding law within a particular district, or at a particular place of the persons and things which it concerns; consuetudo loci est observanda.2

There are, however, several requisites to the validity of every custom. First, it must be certain, or capable of being reduced to a certainty.3 Therefore, 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. And a custom to pay a year's improved value for a fine on a copyhold estate is good; for, although the value is a thing uncertain, yet it may at any time. be ascertained. Secondly, the custom must be reasonable in itself;5 it is not, however, unreasonable, merely because it is contrary to a particular *maxim or rule of the common law, for consuetudo ex certâ causâ rationabili usitata privat communem legemo— [*714] custom, when grounded on a certain and reasonable cause, supersedes the common law ;7 in proof of which may be instanced the customs of gavelkind and borough English, which are directly contrary to the law of descent; or, again, the custom of Kent, which is contrary to the law of escheats. Neither is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth: as the custom to turn the plough upon the headland of another, which is upheld in favour of husbandry; or to dry nets on the land of another, which is likewise upheld in favour of fishing and for the benefit of navigation.' But, on the other hand, a custom, which is contrary to the public good,

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1 Le Case de Tanistry, Davys, R. 31, 32; cited, Judgment, 9 Ad. & E. 421; E. C. L. R. 36; and in Rogers v. Brenton, 17 L. J., Q. B. 34, 45.

26 Rep. 67; 10 Rep. 139. See Busher, app., Thompson, resp., 4 C. B. 48; E. C. L. R. 56. 3 Ante, p. 481.

4 1 Bla. Com. 78; 1 Roll. Abr. 565; Davys, R. 33.

5 Co. Litt. 113, a; Tyson v. Smith (in error), 9 Ad. & E. 406, 421; E. C. L. R. 36. 6 Litt. s. 169; Co. Litt. 33, b.

7 Ib. See Judgment, 5 Bing. 293; E. C. L. R. 15.

8 Ante, p. 262. The law takes notice of the custom of borough English, and the nature of this custom need not, therefore, be specially set forth in pleading. (Judgment, Doe d. Hamilton v. Clift, 12 Ad. & E. 579; E. C. L. R. 40.) The same remark applies to the custom of gavelkind. (Co. Litt. 175, b.)

9 See 2 Bla. Com. 84.

10 Judgment (in error), Tyson v. Smith, 9 Ad. & E. 421; E. C. L. R. 36; Co. Litt. 33, b. See Lord Falmouth v. George, 5 Bing. 286, 293; E. C. L. R. 15.

or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason, for it could not have had a reasonable commencement. For example, a custom set up in a manor on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad, for it is injurious to the multitude, and beneficial only to the lord. So, a custom, that the lord of the manor shall have 37. for every pound-breach

of any stranger,2 or that the lord of the manor may detain a [*715] *distress taken upon his demesnes until fine be made for the damage at the lord's will, is bad.3 In these and many other similar instances, the customs themselves are held to be void, on the ground of their having had no reasonable commencement, but as being founded in wrong and usurpation, and not on the voluntary consent of the people to whom they relate; for it is a true principle, that no custom can prevail against right, reason, or the law of nature. The will of the people is the foundation of that custom, which subsequently becomes binding on them; but, if it be grounded, not upon reason, but error, it is not the will of the people,' and to such a custom the established maxim of law applies, malus usus est abolendus—an evil or invalid custom ought to be abolished. Thirdly, the custom must have existed from time immemorial; so that, if any one can show its commencement, it is no good custom." And, fourthly, the custom must have continued without any interruption; for any interruption would cause a temporary cessation of the custom, and the revival would give it a new beginning, which must necessarily be within time of memory, and consequently the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom. As, if the *inhabitants

[*716] of a parish have a customary right of watering their cattle

1 Year-book, 2 H. 4, fol. 24, B. pl. 20; 1 Bla. Com. 77.

2 See the reference, 9 Ad. & E. 422, n. (a); E. C. L. R. 36.

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3 Ante, p. 85. Judgment, 9 Ad. & E. 422; E. C. L. R. 36. 5 See Taylor, Civil Law, 3d ed. 245, 246; Noy, Max., 9th ed. p. 59, n. (a); Id. 60. 6 Litt. s. 212; 4 Inst. 274; 1 Bla. Com. 76; Hilton v. Earl Granville, 5 Q. B. 701; E. C. L. R. 48; (the question in which is not yet, we believe, finally decided), is an important case with reference to the reasonableness of a manorial custom or prescriptive right. See, also, Clayton v. Corby, 5 Q. B. 415; E. C. L. R. 48; where a prescriptive right to dig clay was held unreasonable: Gibbs v. Flight, 3 C. B. 581; E. C. L. R. 54. In Lewis v. Lane, 2 Myl. & K. 449, a custom inconsistent with the doctrine of resulting trusts was held to be unreasonable.

71 Bla. Com. 76.

at a certain pool, the custom is not destroyed though they do not use it for ten years;-it only becomes more difficult to prove; but, if the right be in any way discontinued for a single day, the custom is quite at an end.1

Where, then, continued usage has acquired the force of an express law, reference must be made to such usage in order to determine the rights and liabilities of parties, arising out of transactions which are affected by it; for optimus interpres rerum usus. But this maxim is also applicable to many cases, and under many circumstances, which are quite independent of customary law in the sense in which that term has been here used, and which are regulated by mercantile usage and the peculiar rules thereby recognised.

The law merchant, it has been observed, forms a branch of the law of England, and those customs which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce; and, when so adopted, it is unnecessary to plead and prove them.2

Likewise, in cases relating to mercantile contracts, courts of law will, in order to ascertain the usage and understanding of merchants, examine and hear witnesses conversant with those subjects; for merchants have a style peculiar to themselves, which, though short, yet is understood by them, and of which usage and custom are the legitimate interpreters.3 And this principle is not confined to mercantile *contracts or instruments, although it has been more fre

quently applied to them than to others; but it may be stated [*717]

11 Bla. Com. 77.

2 Judgment, 7 Scott, N. R. 327; ante, p. 541.

3 3 Stark. Ev. 1033; cited, 3 B. & Ad. 733; E. C. L. R. 23; per Lord Hardwicke, C., 1 Ves. sen., 459. See Startup v. Macdonald, 7 Scott, N. R. 269, where the question was respecting the reasonableness of the time at which a tender of goods was made, in the absence of any usage of trade on the subject. Evidence of former transactions between the same parties is receivable for the purpose of explaining the meaning of the terms used in their written contract; Bourne v. Gatliff, 11 Cl. & Fin. 45. See, also, Ford v. Yates, 2 Scott, N. R. 645; Walker v. Jackson, 10 M. & W. 161; (*) Johnston v. Osborne, 11 Ad. & E. 549; E. C. L. R. 39; Trueman v. Loder, Id. 589; Stewart v. Aberdein, 4 M. & W. 211; (*) Baxter v. Nurse, 7 Scott, N. R. 80; Caine v. Horsfall, 17 L. J., Exch. 25, where the question was as to the meaning of the term "net proceeds;" Reg. v. Stoke-upon-Trent, 5 Q. B. 303; E. C. L. R. 48; Robertson v. Jackson, 2 C. B. 412; E. C. L. R. 52; Partridge v. Bank of England, 15 L. J., Q. B. 395.

4 Per Parke, J., Smith v. Wilson, 3 B. & Ad. 733; E. C. L. R. 23; which case has been repeatedly recognised, and where evidence was held admissible to show, that,

generally, that where the words used by parties have, by the known usage of trade, by any local custom, or amongst other particular classes, acquired a peculiar sense, distinct from the popular sense of the same words, their meaning may be ascertained by reference to that usage or custom.1

Moreover, the question in such cases usually is, whether there was a recognised practice and usage with reference to the transaction out of which the written contract between the parties arose, and to which it related, which gave a particular sense to the words employed in it, so that the parties might be supposed to have used such words in that particular sense. In these cases the character and description of evidence admissible for that purpose is the fact of a general usage and practice prevailing in the particular trade or business, not the judgment and opinion of the witnesses, for the contract may be safely and correctly interpreted *by re[*718] ference to the fact of usage, as it may be presumed such fact is known to the contracting parties, and that they contract in conformity thereto; but the judgment or opinion of the witnesses called affords no safe guide for interpretation, as such judgment or opinion is confined to their own knowledge."2

In connexion with this subject we may further observe, that if there be evidence of an established usage at the stock exchange of a particular town according to which the brokers are responsible for their principals, and by which persons contracting look only to the brokers, a person employing a broker there impliedly empowers him to deal according to the recognised usage of the place, and his knowledge or ignorance of such usage seems to be immaterial.3

There is also another extensive class of cases to which reference has been made in a former chapter, and in which evidence of usage is admitted to explain and construe ancient grants or charters. Nor is there any difference in this respect between a private deed and the king's charter; in either case, evidence of usage may be given to expound the instrument, provided such usage is not inconsistent

by the custom of the country where the lease was made, the word thousand, as applied to rabbits, denoted twelve hundred. Spicer v. Cooper, 1 Q. B. 424; E. C. L. R. 41; is also in point.

1 Judgment, Robertson v. French, 4 East, 135. See the cases, 2 Phill. Ev., 9th ed. 281, 288, 336.

2 Judgment, Lewis v. Marshall, 8 Scott, N. R. 493.

3 Bayliffe v. Butterworth, Exch., 11 Jur. 1019, and cases there cited. Mitchell v. Newhall, 15 M. & W. 308.(*)

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* Ante, p. 532.