1. The appellant, the Zamorin of Calicut, sued for Rs. 541-2-6, said to be the amount of renewal fees due by the respondent, in respect of certain lands held by him under a permanent grant known as anubhavom, made long ago by a predecessor of the appellant to a predecessor in title of the respondent who is an assignee for value. The original grant was made many years ago, but it was renewed or confirmed by Exhibit I in 1873. Exhibit I stipulates for the yearly rent and the amount of a certain fee which the grantee was to pay, but contains no reference to any renewal fee payable to the grantor.
2. The appellant's claim was based on an express agreemont by the respondent as well as upon custom. The lower Courts held that the agreement was not proved, and that no binding custom was made out.
3. It was contended by the learned Advocate-General on behalf of the appellant that the District Judge was in error in applying to the case the rule that a party setting up a custom, having the force of law, should prove the antiquity, uniformity and certainty of the custom, inasmuch as what was set up here was not a custom of the district but the special custom prevailing in his own estate with reference to Lands held under anubhavom tenure.
4. But in the plaint the custom was referred to as the 'custom of the country.' The lower Gourt cannot, therefore, he said to have erred in dealing with it as a general custom. This consideration is sufficient to justify the dismissal of the appeal.
5. It is, however, desirable to point out that even upon the ground on which the claim was sought to be based before us, the appellant could not succeed. For, assuming for argument's sake that the evidence in the case is, as suggested on behalf of the appellant, sufficient to prove a well-established practice, according to which persons holding under the Zamorin lands on anubhavom tenure make periodical payments similar to that here claimed, it is clear that such practice cannot affect the respondent's right under the assignment. Now a practice of the kind in question is not in law a 'usage' with reference to which the Courts are at liberty to import into a contract incidents not excluded by the terms of such contract, even though a party to the contract was not actually cognizant of the usage. 'To constitute a usage,' as was observed in Adams v. Otterback 15 Howard 545 by the Suprome Court of the United States when referring to a contention similar to that in the prosent case and which was founded on the practice of a particular hank, 'it must apply to a place rather than to a particular bank; it must be the rule of all the banks of the place or it cannot consistently be called a usage. If evory bank could establish its own usage, the confusion and uncertainty would greatly exceed any Local convenience resulting from the arrangement.' In order, therefore, to render the practice, even though invariable of particular persons, as in the prosent instance, relevant, as the same Court pointed out out a later case, 'mere knowledge of such a usage would not be sufficient, but it must appear that the custom actually constituted a part of the contract.' Bliven v. The New England Screw Company 23 Howard 431. In the case just cited, a screw company being the sole manufacturers of wooden screws were unable to supply the demands of all their customers as fast as needed. The company adopted the system of apportioning their articles as fast as produced among their customers, having regard to the date of their orders. It was hold that, the practice being well known to the plaintiffs who had ordered such goods, proof of the practice and of the company following it in complying with plaintiff's orders was admissible as a defence in a suit for failing to deliver in time. The same principle was recognized in Scott v. Irving 1 B. & Ad. 612. There evidence was given of a practice prevailing at Lloyd's in London of setting off in account between the broker employed by the assured to recover the loss and the underwriters the amount of premium due by the broker to the underwriters against the loss and that such set-off and adjustment were treated as payment to the assured. It was held that the assured was not bound by the practice. Lord TENTERDEN observed: 'Such a usage, however, can be binding only on those who are acquainted with it and have consented to be bound by it. There may possibly be cases proved where an assured being cognizant of such usage may be supposed to have assented to it and therefore may be bound.' Womersay v. Dally 26 L.J. Exch. 220 is perhaps even more analogous to the present case. There the plaintiff had been a tenant of a farm belonging to an extensive estate, the property of a family named Thornhill, and the defendants had purchased certain parts of the estate including portions of the farm, It was proposed to offer evidence of a usage on the Thornhill Estate that in all lettings it should be understood that the tenants should keep one-third of their farms arable and two-thirds in grass and pay 5 an acre on leaving, for any excess beyond the proportion of arable over grass. Martin, B., refused to admit the evidence, it not appearing that the plaintiff was not cognizant of the usage. On a motion for a new trial, it was contended that the evidence was admissible on the same principle as that on which the evidence of the 'custom of the country' is admitted. But Pollock, C.B., replied to the contention: 'No. The law takes cognizance of the divisions of the country into counties or parishes which are legal and public divisions; but not into properties or estates which are purely private in their nature. Estates maybe very small and if large are only accidentally so. It would be impossible to draw any legal distinction between an 'estate' of 100 acres and 100,000, and there would be no legal presumption of notoriety arising from the fact of usage as to terms of letting a particular estate. Non Constat that the party becoming a tenant for the first time would hear of it.' and eventually the whole Court held that the evidence was clearly inadmissible, since it was as to the practice of a particular person on letting his farms--a practice not proved to have been known to the tenant.
6. No doubt the present case is distinguishable from those above cited, for while in them the person, who was sought to be bound by the practice, was a party who originally entered into the contract, here be is an assignee for value. But that distinction makes the appellant's position only more onerous. For it is clear that the party relying on the practice should show before an assignee for value is held affected by the practice, not only that it originally entered into and formed a part of the contract, but also that the assignee, and if thore have been more assignments for value than one, every prior assigneo was, before he took the assignment, aware of that fact. To hold otherwise would, it is obvious, ofton result in injustice to assignees for value, who arc certainly liable to be misled as to the nature and extent of their obligations under grants or contracts assigned to them, the written instruments evidencing which (like Exhibit I in the present case) contain no reference to the practice relied on and the incidents said to be annexed thereby. Such being the rule applicable to the appellant's ease, as presented in this Court, we must hold that the appeal fails, since it is not even alleged by the appellant that the respondent had knowledge that the practice formed part of the contract. It is therefore unnecessary to enter into the other questions as to the existence of the practice and as to its forming part of the contract.
7. The second appeal is dismissed with costs.