Odger's English Common Law

86 CUSTOMS.
weight ; for it might have a reasonable commencement notwithstanding-
for the lord might take less for the land on the account of this disadvantage
to his tenant. But the true objections to this custom are, that it is
uncertain, and, likewise, unreasonable, as it may deprive the tenant of the
whole benefit of the land ; and it cannot be presumed that the tenant at
first would come into such an agreement .... for the lord or his tenants
may dig coal-pits when and as often as they please ; and may, in such case,
lay their coals, &c, on any part of the tenant's land, if near to such coal-
pits, at what time of the year they please, and may let them lie there as
long as they please ; they may be laid on the tenant's land and continue
there for ever."
So, too, a custom for all customary tenants of a manor, who had gardens
as part of their tenements, to dig, take and carry away from a waste within
the manor " for the purpose of making and repairing grass plots in their
gardens . . . such turf covered with grass ... as often and in such
quantity as occasion may require," was held bad for uncertainty. "A
custom, however ancient, must not be indefinite and uncertain . . . there
is nothing to restrain the tenants from taking the whole of the turbary of
the common, and destroying the pasture altogether. A custom of this
description ought to have some limit ; but here there is no limitation to the
custom as laid but caprice and fancy." x But a custom to pay a year's
improved value by way of fine on a copyhold estate might be good, for the
value, though at present unknown, may at any time be ascertained.
II. Trade Customs.
So far we have spoken of local customs and usages, which
are, for the most part, true " local laws." We proceed now
to discuss certain customs which prevail only in particular
trades or markets. Evidence of the existence of such customs
or usages is admissible to import into contracts additional terms
or incidents, which are proved to be in force in such trades or
markets, provided these are not repugnaut to the express
terms of the contract. For the parties did not mean to put
into writing all the terms of the contract by which they
intended to be bound ;
they wished to contract with reference
to known usages, which it was unnecessary to state. 2
Parol
evidence, indeed, is inadmissible to show that the parties to a
written contract intended to exclude the incorporation into it
1 Per Lord Ellenborough, C. J., in Wilson v. Willes (1806), 7 East, at p 127
See also Clayton v. Corby! (1813), 5 Q. B. 415.
2 Humfrey v. Dale (1858), E. B. & E. 1004 ; Hutchinson v. Tatham (1873)
L. B. 8 P. 482 ; Pike v. Ongley (1887), 18 Q. B. D. 708. Conn are Wigglesworth
v. Dallison (1779), Dougl. 201, ante, p. 82