1 C. & P. 60. See also as to the necessity that evidence to establish usage must be definite and certain, Oelricks v. Ford 28 How. 40.

Nor is it necessary that the word sought to be interpreted by custom should be, of itself, ambiguous. (l) For not only will custom explain an ambiguity, but will change the sense of a word from one which it bears almost universally, to another which is entirely different. Thus, words of number are of all others least ambiguous; but, as we have seen, custom will * interpret one thousand to mean one hundred dozen, or twelve hundred. (m) And so usage has been permitted to show, that the word "bale" means, in a certain trade, not an ordinary bale, but a package of a peculiar description. (n)

Custom and usage are very often spoken of as if they were the same thing. But this is a mistake. Custom is the thing to be proved, and usage is the evidence of the custom. (o) Whether a custom exists is a question of fact. (p)1 But in the proof of this fact questions of law of two kinds may arise. One, whether the evidence is admissible, which is to be settled by the common principles of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man testified that he had done a certain thing once, and had heard that his neighbor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testified to a uniform usage within their knowledge, and were uncontradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and if they deemed it to be so, * would instruct the jury, that, if they believed the witnesses, the custom was proved. The cases on this subject are numerous. But no definite rule as to the proof of custom can be drawn from them, other than that derivable from the reason on which the legal operation of custom rests; namely, that the parties must be supposed to have contracted with reference to it.

(l) See ante, p. *539, n. (h). Where words or clauses are doubtful in their meaning, much slighter evidence of usage will suffice to fix and determine their meaning. 1 Duer on Ins. 254. Where goods on board a vessel are insured "until discharged and safely landed," a resort to usage seems necessary to fix the meaning of the clause "until discharged and safely landed," the mode of discharge being dependent upon the usual course of the trade, and hence slighter evidence will be required. Noble v. Kennoway, 2 Doug. 610. Such is also the case where the usage of the port of departure is followed in taking in the cargo of a ship.

Kingston v. Knibbs, 1 Camp. 508, n. See also Barton v. McKelway, 2 N. J. 166. This was an action on a contract to deliver a number of morus multicaulis trees, of "not less than one foot high." It was held, that it might be shown, that by the universal usage and custom of all dealers in that article, the length was measured to the top of the ripe wood, rejecting the green immature top. See also Moxon v. Atkins, 8 Camp. 200.

(m) See ante, p. *539, n (h).

(n) Gorrissen v. Perrin. 2 C. B (N. S.) 681. See also Jones v. Clarke, 2 H. & N. 725.

(o) Per Bayley, J., in Kead v. Rann, 10 B. & C.440.

(p) The custom must be established by the evidence of witnesses who speak directly to the fact of the existence of the custom. In Lewis v. Marshall, 7 Man. & G. 729, evidence was offered to show that the terms "cargo" and "freight" would be considered to comprise steerage passengers and the net profit arising from their passage-money. Tindal, C. J., said: "The character and description of evidence admissible for that purpose, is the fact of a general usage and practice prevailing in the particular trade or business, not the judgment or opinion of the witnesses; for the contract may be safely and correctly interpreted with reference to the fact of usage; as it may be presumed that such fact is known to the contracting parties, and that they contract in conformity thereto. But the judgment or opinion of the witnesses called, affords no safe guide for interpretation, as such judgment or opinion is confined to their own knowledge. " The custom of merchants or mercantile usage does not depend upon the private opinions of merchants as to what the law is, or even upon their opinions publicly expressed, - but upon their acts. Per Walworth, Ch., in Allen v. Merchants Bank, 22 Wend. 222. See Edie v. East India Co. 2 Burr. 1228; Syers v. Bridge, Doug. 627, 680; Crofts v. Marshall, 7 C. & P. 597; Winthrop v. Union Ins. Co. 2 Wash. C. C. 7; Rogers v. Mechanics Ins. Co. 1 Story, 603, 607. Although a witness testifies generally to the fact of the usage, yet if he is unable to state a particular instance of the observance of the usage, his evidence should be rejected. Per Lord Mansfield, in Syers v. Bridge, Doug. 630; 1 Duer on Ins. 183. See Vail v. Rice, 1 Seld. 155. On the other hand, particular instances in which a certain meaning has been given to certain words, or a certain course followed, are of no avail in establishing a custom, when unaccompanied by evidence direct to the fact of usage. Cope v. Dodd, 18 Penn. St. 33; Duvall v. Farmers Bank of Maryland, 9 Gill & J. 31.

1 Jones v. Hoey, 128 Mass. 585, decided that a usage may be established by the testimony of one witness. Gray, C. J. "There can be no doubt, at the present day, that the circumstance that but one witness testifies to a usage is important only as bearing upon the credibility and satisfactoriness of his testimony in point of fact, and does not affect its competency or its sufficiency as matter of law. See Borrowman v. Drayton, 2 Ex. D. 15, to the effect that "cargo" means the entire quantity of goods loaded on board a vessel on freight for a particular voyage. See Ireland v. Livingston, L. R. 2 Q. B. 99; 6 Q. B. 516; 5 H. L. 395, 410.