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SS 24-27.

UNITED STATES COMMISSIONERS- UNKNOWN HEIRS.

dence against the accused consists of an indictment found against him in another district, quære, whether the indictment can be examined and its sufficiency passed upon by the commissioner. In re Clark, 2 Ben., 540.

$ 24. Section 1014, Revised Statutes United States, in conferring criminal jurisdiction upon United States commissioners appointed by the circuit court, declares that proceedings before them shall be agreeably “to the usual mode of process” in the state where they are appointed. From this it may be inferred that it was the intention of congress to assimilate all proceedings for holding persons accused of crime to answer before a court of the United States to the proceedings had for similar purposes by the laws of the state where such court is held. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

$ 25. Contempt.- It seems that congress has no power to invest a commissioner with the authority, in a proceeding originally instituted before him, to summarily commit a citizen for an alleged contempt, such being an exercise of the judicial power of the United States, which, under the constitution, could not be intrusted to officers appointed and holding office in the manner in which commissioners are appointed and hold their offices. Ex parte Doll, * 7 Phil. (Pa.), 595.

§ 26. Error in proceedings.- The relation of the court to the commissioner is not that of an appellate tribunal. It exercises an independent and original jurisdiction, and it does not follow by any legal rule that an error on the part of the commissioner in the reception of evidence should work a discharge of the prisoner. In re Macdonnell, * 18 Int. Rev. Rec., 11.

$ 27. Extradition cases.— The jurisdiction of a United States commissioner is complete in a case of extradition brought before him under the terms of a treaty and statute. It is his duty to hear the evidence of criminality and judge of the sufficiency thereof; and no other judicial officer has power to review his action thereon. In re Vandervelpen, 14 Blatch., 137; In re Wiegand, 14 id., 370.

UNITED STATES CONSTITUTION.

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UNKNOWN HEIRS.

See ESTATES OF DECEDENTS.

USAGE AND CUSTOM.

(See EVIDENCE.)

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§ 1. Must be uniform and well established.- What is called the custom or usage of trade is the law of that trade, and to make it at all obligatory it must be ancient, so as to be generally known, certain and reasonable. A usage of so doubtful authority as to be known only to a few, and where merchants in the trade differ as to its existence, can never be regarded. Collings v. Hope,* 3 Wash., 149.

$ 2. In order to have commercial usage take the place of general law it must be so uniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract. Blakemore v. Heyman,* 6 Fed. R., 581.

$ 3. A usage to govern or control a contract between parties must be so certain, notorious and uniform as to be understood and known by them. United States v. Duval, Gilp., 356.

$ 4. A usage of a department of the government in settling its accounts can have no effect on those of an individual, unless it is certain, uniform and notorious. Ibid.

85. Workmen and material-men are entitled to enforce their lien before the vessel is finished, and any usage to control such right must be clearly and uniformly well known and understood. Davis v. A New Brig, Gilp., 473.

$ 6. A party cannot prove a custom established by himself; only a general custom may be proved. Maury v. Talmadge, 2 McL., 157.

$7. A usage, to be binding, must be general as to place, and not confined to a particular bank; and in order to be obligatory must have been acquiesced in and become notorious. Adams v. Otterback, 15 How., 539.

$ 8. Evidence introduced in support of a custom of having a watch on board vessels in foreign ports at the expense of the sailors showed that the custom was sometimes observed and sometimes departed from, the express assent of the crew sometimes obtained and sometimes not. Held, insufficient to establish the custom. Chatfield v. Barque Wolga, * 3 Law Rep., 387.

$ 9. A usage to control a general principle should be very clear and uniform; otherwise it ought not to affect the rights of the parties. Trott v. Wood, 1 Gall., 443.

§ 10. A usage of trade, general, long established, and well known and understood, in the inland commerce of the Mississippi valley, will be recognized by the supreme court. Gibson V. Stevens, 8 How., 384.

$ 11. A usage, to be binding in the navy, must be uniform, and applicable to all officers of the same grade under similar circumstances. United States v. Buchanan, Crabbe, 563.

S 12. Sale by auction is in the great marts of commerce so commonly resorted to by merchants to ascertain the value of deteriorated merchandise as to almost amount to a usage of trade. The Columbus, Abb. Adm., 37.

$ 13. A usage in respect to mercantile transactions must be shown to be notorious, uniform and of long continuance. Where an effort was made to establish a custom among pilots to charge double pilotage on vessels crippled and disabled, held, that evidence of such a practice among pilots for four years back was not sufficient to create a custom or usage in respect to the matter which would be binding upon ship-owners and masters. Love v. Hinckley, Abb. Adm., 436.

$ 14. Ordinarily words stamped on the back of a bill of lading by the master, there being no evidence of the assent of the consignee, will not be allowed to vary the established rules applicable to the delivery of goods at the place of destination and the payment of freight, and any usage or custom to give them such effect must be not only general, but of long standing. Brittan v. Barnaby, 21 How., 527.

$ 15. To establish a usage or custom, in a particular port, of ship-owners to discharge the entire consignment of goods before exacting payment of freight, and to allow the consignees to take possession and transport the same to their store for the purpose of making an examination before payment of freight, it is necessary to show more than an occasional practice of such method. The Eddy, 5 Wall., 481.

§ 16. Only ambiguous contracts affected by.- The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence and contracted with reference to it, Barnard v. Kellogg, 10 Wall., 383. $ 17. Evidence of a general usage as to compensation of insurance agents is inadmissible

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where such compensation has been fixed by contract under which the agent has continued to act for a considerable length of time. Stagg v. Insurance Co., 10 Wall., 589.

$ 18. If a custom be inconsistent with the contract it cannot be received in evidence. Barvard v. Kellogg, 10 Wall., 383.

$ 19. Where the intent of parties is clear, evidence of a usage to the contrary is immaterial. National Bank 1. Burkhardt, 10 Otto, 686.

$ 20. In a suit upon a contract for the sale of flour, deliverable at seller's option at a fixed price, evidence of a usage in that community among the dealers in flour to demand a deposit of money or margin, and rescind the contract if such demand should be refused, is not admissible to add to or engraft upon the contract new stipulations nor to contradict those which are plain. Oelricks v. Ford, 23 How., 49.

$ 21. In mercantile contracts it is competent to explain what is ambiguous, and to introduce what is omitted, because sanctioned by usage, yet it is not competent to vary or contradict the terms of the contract. Garrison v. The Memphis Ins. Co., 19 How., 312.

$ 22. If the terms of a contract are technical or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade is admissible to explain the meaning. Salmon Falls Mfg. Co. v. Goddard, 14 How., 446.

$ 23. Held, that evidence is not admissible to vary the common bill of lading, by which goods were to be delivered in good order and condition, the dangers of the sea only excepted, by establishing a custom that the owners of packet vessels between New York and Boston should be liable only for damage to goods occasioned by their own neglect. The Schooner Reeside, 2 Sumn., 567.

S 24. A usage or custom will be admitted to ascertain the nature and extent of contracts, not arising from express stipulations, but from implications, presumptions, and acts of an equivocal character; or to ascertain the true meaning of particular words in a given instrument when these words have various senses. But it will not be admitted to control, vary or contradict a written and express contract. Ibid.

$ 25. A usage or custom of trade may always be waived by, and cannot vary, the positive stipulations of a contract. Knox v. The Schooner Nivetta, Crabbe, 534.

§ 26. Evidence of a local custom is admissible in order to ascertain the understanding of parties with respect to their contracts, made with reference to it, Renner v. Bank of Columbia, 9 Wheat., 581,

$ 27. A usage cannot be incorporated into a contract if inconsistent with the terms of the contract; or in other words, where the terms of a contract are plain, usage cannot be perinitted to affect materially the construction to be placed upon it; but when the terms are ambiguous, usage may influence the judgment of the court in ascertaining wbat the parties meant when they employed those terms. Moran v. Prather, 23 Wall., 492.

$ 28. Where the destination of a vessel is specifically fixed by the bill of lading, which also contains a clause providing for demurrage at a certain fixed sum per day “after four days," such contract cannot be controlled or varied by evidence that, by usage, the clause meant that they should only be entitled to demurrage if detained beyond the four days after having obtained a berth. Philadelphia & Reading R. Co. v. Northam, 2 Ben., 1.

$ 29. There are two classes of cases in which parol evidence of usage is admissible to affect a written contract: 1. Where the evidence is offered to prove that the words in which the contract is expressed in the particular trade to which the contract refers are used in a peculiar sense, and different from what they ordinarily import. 2. For the purpose of annexing incidents to the contract in matters upon which the contract is silent. The rule in both cases is, however, subject to the limitation or qualification that the peculiar sense or meaning which it is proposed by the evidence to attach to the words of the contract must not vary or contradict, either expressly or by implication, the terms of the written instrument. The evidence must be admitted, if at all, for the purpose of giving effect as far as can be done to the presumed intention of the parties. Hearn v. New England Mutual Marine Ins. Co., 3 Cliff., 318.

$ 30. Evidence of a usage which would vary a written contract is not admissible. A cargo was shipped under a bill of lading which contained the following: * With shipper's reconsignment option.” It further provided for payment of demurrage “if the cargo be not received within four working days after notice of arrival." Upon arriving at his destination the delivery of the cargo was delayed by the attempts of the consignee to compel the master to proceed to another port to deliver the cargo. Upon suit by the master against the consignee for demurrage, held, in accordance with the above principle, that evidence of a usage allowing the consignee as well as the shipper to exercise the option mentioned in the bill of lading was inadmissible. McGovern v. Heissenbuttel, 8 Ben., 46. $31. The plaintiff, as agent for the defendant in St. Louis, served under a letter from the

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company to him which stated: “Your status is this: You are working up a business for yourself, and are to be paid the highest commissions we pay to any agent." To which the plaintiff assented. Plaintiff having been discharged brought suit to recover commissions, or commuted value thereof, for renewals of policies after he ceased to be the agent. Held, that the whole sentence must be taken together, and that the plaintiff could not introduce the parol testimony of insurance men or agents to show that the words “working up a business for yourself ” (separating them from the rest of the connected sentence) had a peculiar meaning, and meant that he should be entitled to continuing or future commissions after he had ceased to be agent, and that there was a usage aniong other life insurance companies in St. Louis to allow continuing or future commissions in that manner, such usage being wholly inconsistent with the special contract entered into between the plaintiff and defendant, besides not having been shown to be known to the defendant which, was a foreign corporation. Partridge v. Life Ins. Co., 1 Dill., 139.

$ 32. An insurance agent working for fixed commissions wrote to the company employing him, other agents having been sent into his territory, inquiring what his status was. The company replied: “ Concerning your status in Missouri, it is simply this: You are there working up a business for yourself, and are paid the highest commissions which we pay." To which the agent assented. The agent having been discharged from the employ of the company, brought suit against the latter, and offered to prove by witnesses that the above phrase used by the company had a peculiar meaning as used and understood by men engaged in the business of life insurance, and that by virtue of a general usage in regard to the business of life insurance companies and their agents he was entitled to retain the agency, and in case of his removal against his will, and without sufficient cause, was entitled to be paid a commutation equal to the present value of his commissions computed by the actual rule for computing the present value of policies. Held, that to admit the testimony in support of the usage would have been to establish a new and distinct term to the contract, and that a custom or usage could not be allowed to have that effect. Partridge v. The Insurance Co., 15 Wall., 573.

$ 33. Settled rules of law cannot be controverted by:- Where the law upon a particular subject is settled, proof of a contrary usage cannot be admitted, such evidence being allowed in doubtful cases. Brown v. Jackson, 2 Wash., 24.

$ 34. A custom cannot be set up against a settled rule, nor can it ever be binding unless it be ancient, reasonable, generally known and certain. United States v. Buchanan, 8 How., 83.

S 35. A custom in derogation of a statute is invalid. Hence congress having passed an act relieving ship-owners from liability for losses by fire occasioned solely by negligence of their officers or agents without participation on their part, a local custom that ship-owners shall be liable in such cases can have no effect. Walker v. Transportation Co., 3 Wall., 150.

S 36. Custom cannot be allowed to subvert the settled rules of law. Barnard v. Kellogg, 10 Wall., 383.

$ 37. The rule laid down in Barnard v. Adams, 10 How., 270, that the ship-owner is entitled to a commission upon the amount contributed for in general average, is not founded on a local usage, but upon the law merchant; and a particular local usage in contravention thereof is not binding on those who have entered into no contract with reference to such usage. Sturgis v. Cary, 2 Curt., 382.

$ 38. A common carrier received a case of glass for shipment and gave the drayman of the shipper a receipt in which was inserted “ Not responsible for contents.” In action by the shipper against the carrier for damages caused by the negligent breaking of the glass while in the possession of the latter, held, that the carrier could not set up a custom "not to sign for looking-glasses" unless the words “not responsible for contents” were inserted in the receipt, and thus by custom avoid a common-law liability. The Pacific, Deady, 17.

$ 39. Evidence of a usage contrary to law or inconsistent with the contract is not admissible to control the general rules of law or the intent and meaning of the parties. Thompson 7. Riggs, 5 Wall., 663.

$ 40. The general rule of law being that if a merchant deposits money with a bank the title thereto passes to the bank and the bank becomes the debtor of the merchant to that amount, evidence of a usage or custom controlling such general rule of law is not admissible. Ibid.

$41. Evidence of general usage is never admissible to contradict the settled rules of law. Hearn v. New England Mutual Marine Ins. Co., 3 Cliff., 318.

$ 42. A custom is obligatory on the parties only when the law does not provide for the case. Hence where a grant of a bounty to vessels qualified by law to carry on the cod fisheries is given on the express condition that five-eighths shall go to the fishermen, the fishermen cannot waive their rights, even if they choose so to do, without the consent of the United States, nor can they be precluded from questioning a settlement in which they were not allowed their share of the bounty by any custom on the part of seamen to settle without receiving the bounty.' The Lucy Anne, 13 Law Rep. (N. S.), 545; 3 Ware, 253.

$ 43. Where a purchaser examines a few of the bales of a lot of wool, and having the privilege of examining the balance of the bales declines to do so, it is not a sale by sample, and in the absence of express warranty the rule caveat emptor applies. And where in such case the wool has been deceitfully packed, rotten and damaged wool being concealed in the center of the bales, all of which is unknown to the vendor, proofs cannot be received to control the rule that by the custom of wool merchants there is a warranty by the seller, implied from the fact of sale, that the wool is not falsely packed, especially where the parties did not know of the custom. Barnard v. Kellogg, 10 Wall., 383.

$ 44. There seems to be a growing disposition on the part of the courts to reject local usages when they tend to control or vary an explicit contract or a fixed rule of law. Swift v. Gifford, 2 Low., 110.

$ 45. But in the application of these general views it will be found difficult to ascertain what is considered a principle of law that cannot be interfered with. Principles of law differ in their importance as well as in their origin, and while some of them represent great rules of policy and are beyond the reach of contravention, others may be changed by parties who choose to contract upon a different footing; and some of them may be varied by usage, which, if general and long established, is equivalent to a contract. Ibid.

$ 46. Person must have knowledge to be bound by.- The rules and regulations of the New York cotton exchange can have no effect as a usage or custom upon the legal rights of a contracting party who had no knowledge of such rules and hence never acquiesced in their application to his contract. Blakemore v. Heyman,* 6 Fed. R., 581.

§ 47. A general usage among ship-owners and underwriters in relation to the settlement of average losses, if known to the parties, becomes part of the contract, and binds the parties. Sanderson 2. The Columbian Ins. Co., 2 Cr. C. C., 218.

$ 48. When A. employs B. to compile a text-book, and gives him some suggestions as to its character and form, and agrees to pay him $500, and B. conveys to A, the copyright and it is published by A., calling B. the author on the title-page, it was held that only the usual copyright for fourteen years passes under the contract; the author, being alive at the end thereof, has the sole interest in the additional term then allowed to authors in such cases.

A usage among booksellers to consider the second term as passing with the first does not control the rights of B., who was not a bookseller, nor shown to be couversant with such usage. Pierpont v. Fowle, 2 Woodb. & M., 23.

$ 49. Where the question whether a deposit of a check was absolute or only on condition depends upon a local usage on the part of bankers to have the receiving tellers enter checks in the pass-book as they come in, subject to a return of the checks to the depositors, if in the afternoon of the day when the accounts are examined they are not found to be good, it is essential that proof shall be made that the depositor knew the usage, otherwise he is not bound by it. National Bank v. Burkhardt, 10 Otto, 686.

$ 50. A mining stock-broker who was in the habit of receiving orders daily for stock adopted the practice of sending several orders to San Francisco in one telegram, the whole being thus sent at an expense of seventy-five cents, the price of a single telegram, however short. In settling with his customers he always charged seventy cents for each order sent. In suit upon account between the broker and a customer the former defended his method of charging for telegrams on the ground of usage. Held, that a custom or usage like this, of charging customers in addition to commissions, not merely the actual cost of telegrams, but an arbitrary sum ordinarily much more than the actual cost, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should also appear that both parties had knowledge of it. Marye v. Strouse, 6 Saw., 204; 5 Fed. R., 494. $ 51.

assigne: of contract.— A usage, although long continued, between the consignor and a common carrier, to allow the freight to be delivered in a peculiar manner, contrary to the contract, will not affect an assignee of the bill of lading who had no knowledge of such custom or usage. The assignee in such case has a right to demand the delivery of the freight according to the terms of the contract. Myrick v. Michigan Central R. Co., 9 Biss., 44.

$ 52. Proof of in general.- The testimony of experts is pot admissible to prove that a rule of navigation, recognized by the general maritime law, does not exist in a particular locality, The Clement, 2 Curt., 363.

$ 53. The usage of trade may be proved by parol, although such usage originated in a law or edict of the government of the country. Livingston v. Maryland Ins. Co., 7 Cr., 506.

$ 54. Where a usage is fully proved it becomes a part of the law; and the court will decide on it as such without requiring it to be again proved. Consequa v. Willings, Pet. C. C., 225. $ 50. Testimony of witnesses to the effect that they recognized and had acted upon a cus

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