Page:The American Cyclopædia (1879) Volume X.djvu/226

 220 LAW MERCHANT reigns, and especially in those of the Edwards, various statutes were passed, expressly de mer- catoribus, and in most instances securing to them valuable privileges. Such enactments were from time to time repeated, as they are to this day. And the struggle of the courts, and still more of members of the legal profes- sion, to prevent this invasion of the law, is very remarkable. Thus a question early grew up whether " the custom of merchants " was to be regarded as a custom of certain places, differing in one of them from that which it was in others, or as a part of the general law of the realm. After some intimations in favor of the latter view, in 1622 (Winch's Reports, 24) Lord Chief Justice Hobart declared that " the custom of merchants is a part of the law of this realm ;" and Coke, in both the 1st and 2d Institutes, declares that " the lex mercatoria is part of the laws of the realm." So this question seems to have been finally disposed of. Not so easy was it however to determine, finally and practically, another question which had also arisen. When it was determined that the custom of merchants had becom^ the law merchant, and therefore must be applied to all mercantile contracts between parties who were merchants, it was now asked whether the same law should be applied to the construction and enforcement of the same contracts when they were made between parties who were not mer- chants. That the law merchant should be con- fined to persons who were merchants was at first held by the courts (Cro. Jac., 306, A. D. 1613), in a case where the drawee and accep- tor of a bill of exchange was sued on his ac- ceptance, and the defendant prevailed, on the grounds that only a merchant would be held on such acceptance, and that it did not appear that the defendant was a merchant at the time when he accepted the bill. In another case occurring 19 years afterward, the same doc- trine was held. But in two years more the court had got so far that, the defendant being called a merchant, they held that they would intend that he was a merchant at the time ; and 22 years afterward the court in a similar case decided the whole question by declaring that "the custom is good enough generally for any man without naming him merchant." From this doctrine the courts never afterward swerved, though the point continued to be re- peatedly raised in argument, and it was not till 1765 that Lord Mansfield finally declared : "The law of merchants and the law of the land is the same. A witness cannot be admit- ted to prove the law of merchants. We must consider it as a point of law." The impor- tance of this rule depends upon the difference in law between a custom which is so general that it has the force of law, and one which ap- plies only to a contract made under it because it is to be considered as a part of that contract. This distinction is not merely technical, for it rests upon the most substantial foundations. If two men enter into a contract which relates to some certain subject matter, and upon this an action of law begins which can be deter- mined only by a construction of the contract, one of the parties may insist that it shall be construed in a certain way, because a custom exists in reference to that subject matter and that kind of contract, which gives it that mean- ing and effect. But, to make out this case, he must prove that this custom not only exists, but is so general, so old and well established, and so widely known and recognized, that a jury may believe as a matter of fact that the custom was in the minds of the parties at the time they made their contract, and that they made it in conformity with custom. Very many cases have been decided on this ground. Thus, in England, a party agreeing to leave in a warren 10,000 rabbits, was held bound to leave there 12,000, because it was proved to the sat- isfaction of the jury that, as to rabbits, and in that neighborhood, the words one thousand meant 1,200. (3 Barn, and Adol., 728.) So in New York, where one promised to pay 12 shillings per day for every man employed in a certain business, and some of the men worked 12 hours within the 24, it was held that the employer must pay 15 shillings for such a day, because a custom was shown, applicable to that kind of work, of considering 10 hours in 24 a day's work. (5 Hill, 437.) But it is a very different thing when the question is whether a custom exists, so general as to be a part of the law of the land. Thus, a man promises, by his note in writing dated Jan. 1, to pay to some one $1,000 in three months from date. The general law says that the money must be paid on the 1st of April. But a custom comes in, which has, after ages of general acknowledgment and practice, acquired the force of law, and this custom adds three days to the three months, and the money is not due until the 4th of April. And then an- other custom comes in, which by the same means has acquired the same force, and the effect of this is, that if the 4th of April falls on Sunday or any legal holiday, the money is due on the 3d. The practical difference be- tween these two things is this. In the two cases cited of the rabbits and the days' work, whoever relied upon the custom was bound to prove conclusively to the jury its existence recognition, as a matter of fact ; and if it were so proved, the court would instruct the jury as to the legal effect of the fact thus proved. This legal effect would be only that these two persons would be bound by the construction put upon the words by the custom under which they used the words, in the same way in which they would be bound if they had expressly defined those words as having that meaning. But in the other case, no proof would be offered to the jury, nor would the court permit them to listen to any evidence about it. The only question would be, what is the law, not for this bargain only, or for these parties only, but for all parties and in reference to all similar