Custom and agreement overrule law.
This maxim refers, of course, to those persons and things subject to the custom and the agreement ; and, so far as they are individually concerned, the law relating to them is over- ruled by them ; with this exception, that the custom be not unreasonable, and that the agreement be not in contravention of any law relating to third parties, or to the welfare of the public ; as, for instance, a custom to take soil from the land of another without stint and without accounting for the profits, or, an agreement to compromise a felony, or to buy off opposition to a bankrupt obtaining his discharge under the bankrupt laws.
An instance showing the connection existing between custom and law, in the absence of any special agreement between the parties, is this : — It is a rule of law that in the case of houses or lands let from year to year, six months' notice to quit by either party, to expire at the time of entry, must be given : custom, however, in different countries and places, overrules this ; and, as to the house, the tenant is entitled to retain possession to one time, and, as to the land, to another, according to the particular custom. A custom, to be of force as such, must be of general application, and largely prevalent in the district in which it is supposed to be applied, so that every person may be taken to be dealing with a full knowledge of it. Therefore, where an agreement to let lands was made determinable on six months' notice to quit on either side, and it was attempted to be shown that by the custom of the locality, and particularly in all leases and agreements with reference to the landlord's estate, it had always been the custom to give six calendar months' notice to quit before the expiration of the current year of the term, and that by such custom the six months' notice mentioned in the agreement meant calendar months ; it was held that the word “months” primarily meant lunar months, and though the custom of a district might be sufficient to vary that meaning, the custom of a small estate would not.
A custom must be reasonable and certain ; and, therefore, a claim by custom or prescription to grant licenses to work stone quarries, in alie.no solo, without stint or limitation, and without accounting for the profits, cannot be maintained. For this would be a profit a prendre, which cannot be claimed by custom in another's land ; as, otherwise, a man's soil might thus be subject to grievous burdens in favour of successive multitudes of persons, as the inhabitants of a parish or other district, who could not release the right, and which would tend to the destruction of the inheritance and exclusion of the owner.
Where lands and buildings are leased without any express stipulation as to repairs, tillage, &c, a covenant will be implied on the part of the lessee that he will use the buildings in a proper tenant-like manner, and manage and cultivate the lands in a good husband-like manner, according to custom ; but not that he will keep the buildings in repair, or do any act not required in an ordinary tenancy. Custom attaches itself to all contracts relating to lands within the limits of the custom, and is considered as incorporated therewith, unless expressly excluded therefrom. The following maxims are applicable to the exceptions above mentioned : — “ Pacta privata jura publico derogare non possunt;” and “ Pacta quse contra leges constitutiones que vel contra bonos mores fiunt, nullum vim habere, indubitate juris est.”
Shepp. Touch. 162; 2 Co. 73; 7 Co. 23; C. 2, 3, 6 ; 1 Lev. 162; Holding v. Piggott, 7 Bing. 465 ; Brown v. Crump, 6 Taunt. 300 ; Webb v. Plummer, 2 B. & A. 7411 ; Race v . Ward, 4 E. & B. 70.3 ; Martin v. Clue, 18 Q. B. 661 ; Morrison v. Chadwick, 7 C. B. 266 ; Clarke v. Roystone, 13 SI. & W. 762 ; Harnett u. Maitland, 16 JI. & W. 257; Womeraley v. Dalby, 26 L. J. 21!), Ex. ; Attorney-General v. Mathias, 31 L. T. 367; Rogers u. Kingston-on-Hull D. C, 11 L. T. (N.S.) 42.