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their transit, and Lizaur's claim was rejected. Both firms CH. 25. represented the same parties in interest. It was contended for J. L., that as the goods were purchased by his order, and partly with his funds, they became his bn the purchase, and that nothing was left to the shipper but a right of stoppage in transitu, (not applying to this case.) The true ground was, the shipper's kept the possession and control of the goods in themselves and their agents, the firm at Rio, and never delivered them to the use of J. L. The delivery to the master was to the use of the consignee's said firm at Rio. No papers were sent to him. Cited in this case the cases of the Merrimack, the Frances, the Mary and Susan, above, and of the Venus, Ch. 224, a. 9. s. 5.

§ 18. General principle. If the consignor retain the control of the goods in transitu, he retains the property; secus if he gives the control to the consignee or his agent (independent of stoppage in transitu for insolvency.) As if A at Liverpool, sent goods to B in Boston, his agent, to hold them subject to C's order, A retains the control over them, and may give them what direction he pleases until C gives his order. The Joze Indiano-generally if the goods go on account of the consignor or shipper, or subject to his control, they remain his in transitu. So if any condition be annexed to the delivery to the consignee, they remain the consignor's, though sent in pursuance of the consignee's orders, as the condition of immediate payment or specified security given &c. So where shipped to the shipper's order to be delivered by his agent to the consignee, on the agent's being satisfied as to the payment. One of the Merrimack's cases, above, 4 Rob. 218, 319. But if the shipper consign goods to his agent, but the invoice &c. shows they are for account of the consignee in fact, the purchaser and the consignor sends to him the invoice, bill of lading &c. directly; they are his, as such possession of these evidences of property proves the intention; first case above, Merrimack's case. So if A ship goods to B unconditionally, for C's use, they are his in transitu: secus if to B with discretionary orders, 1 Wheat. R. 208. They remain the shipper's if he consign them expressly to another, if done without his order or against it, or in a manner different from it as to quantity or kind, for in such case the consignee is under no obligation to accept them, in fact there is no contract between consignor and consignee to change the property. Several cases above, and case of the Venus, Ch. 224, a. 9, s. 5; 1 Gal. 445.

§ 19. If my agent abroad absolutely purchase goods on my account, or actually set them apart to my use by my consent, they become mine immediately on the purchase &c. But if he

CH. 25. first makes them his own, as if he buy solely on his own credit, they are not mine till he does some notorious act to change the property and make them mine by my consent, expressed or implied, or parts with the possession by an actual and absolute delivery to me or to my use. The Mary & Susan.

§ 20. The belligerent right which forbids a change of property from consignor to consignee in transitu. In a war, for instance, between the United States and Great Britain, B, a British merchant, ships his goods to a neutral consignee; they are B's property when shipped. By the laws of war and prize they cannot in their transit become the neutral's, but remain B's notwithstanding any acts done by him and the neutral, so long as they are passing the ocean, and will be liable to be captured as B's by his enemy. These laws of war and prize are not so much founded in mere rights, as in national policy. Their object is to disable the belligerents or our enemy, to consign fraudulently or under cover, his ship or goods in transitu to a neutral, and thereby deprive the consignor or vendor's enemy of his belligerent right of capture. These laws, therefore, forbid all such transfers, and the prize court hold them void. As to vessels they are viewed as belonging to the country whose flag and pass they bear, and a transfer to a neutral is of no avail if they be habitually employed in the trade and navigation of an enemy's country, 1 Rob. 26; 5 Rob. 22, 161. But generally a ship's character is determined by her owner's domicil. If a neutral constantly employ his vessel in my enemy's trade and navigation, such neutral is estopped by his conduct, declarations, and oaths, to say she does not belong to such enemy's country; but he only is estopped. But as against him other parties may say she is neutral. Still, however, a neutral may fairly purchase my enemy's merchant ships in time of war, and when so purchased all are bound to respect their neutral character so long as they are in neutral employment; but the purchase must not be while the ship is in transitu. It must be well authenticated with the usual evidence, for a reasonable consideration, and the sale must be absolute and complete. Authors generally agree in these positions.

CHAPTER XXVI.

Сн. 26. Art. 1..

ASSUMPSIT. CUSTOMS AND PRESCRIPTIONS.

tion.

ACTIONS of assumpsit in several cases, rest on the customs See Prescrip of the country; as actions against and by carriers, inn-keepers, farriers, factors, taylors, and other persons who are by law obliged to perform services for a reasonable hire or reward. These are, generally considered, under their several heads, when the principles and pleadings peculiar to each are brought together. See also, Flats, Mills, Tolls, &c. &c.

There are also, in regard to customs, certain general principles, which may properly be here concisely examined; and actions of assumpsit, in some cases, founded on customs may be noticed in this chapter, which do not come under any of the particular heads mentioned. Custom and prescription are all one; Cro. El. 313: only difference, one is local, the other personal. Co L. 113. The true test of a commercial usage is its having existed a sufficient time to have become generally known, and to warrant a presumption that the contracts are made in reference to it. 1 Caine's R. 45. Smith v. Wright.

ART. 1. General principles. As no action or plea can be supported, which rests on a bad custom, it is necessary in this place to enquire what is a good and what is a bad custom.

Custom is unwritten law, and respects place, as prescrip- 1 Bac. 671. tion respects persons, and every custom is construed strictly.

Several things are essential to make a custom good and 1 Bl. Com. 76, valid.

78.-Co. L.

110

1. A custom must have been time out of mind; for if 1 Bac. Abr. any one can shew when it began, it is not a good custom.

670.

2. It must be continued without any interruption, or tem- Co. Lit. 113, porary ceasing of the right, otherwise, of possession or enjoy

ment.

§ 3. It must have been peaceable, and acquiesced in, and not disputed at law or otherwise; for customs owe their origin to common consent. This cannot be intended in disputed

cases.

b.

-11 Mod.

§ 4. It must have been reasonable, or rather not unreason- 6 Com. D. 77. able; but if one plead a custom, he is not bound to shew, it 161. had a reasonable commencement.

$ 5. It ought to be certain, so that it may be known and understood, as to the persons claiming, the thing claimed, &c.

Сн. 26.
Art. 1.

$ 6. It ought to be compulsory, and not left to each one's option to use or obey it or not.

7. And customs must be consistent with each other. If 1 Ld. Raym. contradictory they destroy each other. It is not to be presumed a custom originated in an act of parliament.

485.

3 Salk. 112.

8. The foundation of a custom is consent. As no law can oblige a people, without their consent given in some form or other; so, when they do consent, and use a certain rule as a law, such rule is a law, in many cases; but it may be void in some cases, as being repugnant to a more general law.

9. This consent to a rule or law is expressed in writing, or implied by actions. Where by actions, it is common law, or custom; custom, if confined to a particular place; common law, when universal. Actions repeated and continued by the same rule, is evidence of assent to it, by those who do those acts; but the original reason of the consent need not be 1 Mod. 161. shewn. Dougl. 131, in Cocksedge & al. post. The beginning of a custom must not appear to be unreasonable, “for no usage can be good which was not so ab initio." But a custom is not bad because it is contrary to the common law; for many customs are so, as the custom in Kent of Gavelkind, so the custom of Borough English in some places. Nor is a custom bad because it is injurious to private persons or interests, if it be for the public good. Hence, custom to pull down houses in a great fire to prevent it spreading is good; so to turn a plough on the headland of another is a good custom, for this favours and promotes husbandry.

Dougl. 203.

10. But a custom injurious to the public, or to many persons, and beneficial only to some individuals, is bad; as many persons owning most of a pasture shall not put in their cattle till some minor owner does; for such a custom must have arisen in tort or usurpation, and cannot have had a reasonable 2 Lutch.1317. commencement. The custom of a place cannot extend be-3 Salk. 113. yond that place. In all pleadings of a custom, it ought to be case of Gate- positive that within such a place there is such a custom; this is alleged in the land, but prescription in the person.

Sid. 237.

-6 Co. 60,

ward.

Cunningham 79, 80.

1 Bl. Com. 76.

§ 11. When foreign written laws, as the Pandects, Codes, Institutes, &c. are adopted and used by custom in the English courts, or in the United States, they are a part of the unwrit ten or customary law. They have force merely because adopted, and have been immemorially used.

12. The custom of merchants is a part of the common law of the land, and the courts ex officio take notice of it accordingly. But this custom of merchants must be controlled by adjudged cases, 2 Burr. 1216, Edie v. E. I. Company. It arises from general established law, and not from special local usage; nor the opinion of merchants &c.; but may be proved

by their understanding of it; 1 W. Bl. 417; 2 Burr. 1226; 6 East 202, Parr v. Anderson; 1 Cain. Smith & al. v. Wright; 2 John. R. 327. So other general customs the courts in like manner take notice of, and they need not be pleaded specially as English statutes, as common law adopted here being general they are properly common law, and not strictly custom, which is limited to some place, part of a state or nation, as is gavelkind. But particular customs must be specially pleaded, and the existence of them shewn, and also it must be stated and proved, that the thing in dispute is within them. And if the plt. declare on a particular custom, and the deft. confess it by his demurrer, the plt. shall have judgment, though there in fact be no such custom, for the parties agree it exists; and the court cannot take notice there is no such private or particular custom, but otherwise of a general cus

tom.

CH. 26.

Art. 2.

Blanford.

So in stating an antient custom the exceptions to it must be Cowp. 62, stated; if not, the custom stated and the one proved will be Griffin v. different. If a bad custom be stated in the declaration, it is Rob. 89. not aided by assigning a breach in a good part.

13. Many customs may have had a reasonable commencement, and so be good in another country for reasons existing there, that cannot be applied in this country. Such as most of the customs in England founded in the feudal and church systems.

§ 14. But in regard to some customs there, the reasons 2 Bl. Com: which made them good or bad in that country make them so 265. in this. Custom is local usage and not annexed to any person, and prescription is a mere personal usage annexed to some person or persons.

3

Salk. 278. 3 Cro. 664 -6 Co. 60,

-3 Lev. 160.

case.-
3 Wils. 458.

-Dougl. 725.

ART. 2. Good customs, further cases. §1. As a custom to dig gravel in the adjacent land to repair a way is good, so to have a watering place in the adjacent land is good; and so to dig ballast, for these things are for the public good, and might well Gateward's have a reasonable beginning founded in the consent of those concerned. So a custom to dry nets on another's land is good. And so a custom to cut rushes in the Lord's waste for one occupying a house &c. and having common there, as against a stranger. So a custom to distrain the parts or goods of a ship Bloomfor the port duties on the goods shipped on board is good; 12 Mod. 216. here the duties were for repairing the port.

5 Co 84.2 W. Bl. 926, Bean v.

3 Wils. 456.-

Gateward's

2. In these customary claims and rights these distinctions 6 Co. 60, 61, are taken in Gateward's case, and generally admitted in subse- case.-Hob. quent cases: 1. That every inhabitant of a town may claim a 86, discharge by custom of his soil, as a modus to discharge him of tithes; but cannot by custom claim to charge the soil of another, or a right in his soil.

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