upon the second note he was held not bound by the usage. For though he knew it, yet it was, as regarded this note, a mere abstract fact, there being nothing whatsoever to show that he ever contemplated that the note should pass into the possession of this especial bank, or be subjected to the effect of any of its usages.

Generally speaking it cannot be presumed that a person is acquainted with the customs of doing business which obtain among the banks of any place distant from that in which he himself lives and deals. But if he enters into any transaction which he is aware must be reasonably expected to involve a dealing with or through the banks of the distant place, his knowledge of and assent to their customs will be implied. This is only a slight extension of the principle which declares every person dealing with a bank to be affected with knowledge of its usages, and is supported by the cases which assert that doctrine.1

Established Usages and Alterations in them.

Usage having been once found and sanctioned by the courts, evidence to disprove its existence becomes thereafter inadmissible. But this refers only to its existence at that time at which the decision found the fact of its existence. For a usage is sustained by the courts not because it is in itself law, but generally in spite of the fact that in itself it is not law and because it is the uniform practice of the community which the judiciary from motives of policy will refrain from interfering with. But if at any time it ceases to become the practice of the community it will no longer be judicially recognized as binding. For all transactions occurring during the period that it remained unchanged it must always be law, but transactions occurring after the change will not be affected by it. Evidence of the fact of a change is therefore admissible to show that

1 Bank of Washington v. Triplett, 1 Pet. 25.

the previous decisions have ceased to be controlling precedents, or to indicate the true rule.1

Precision in Proof of Usages.

The business of banking admits of great nicety of organization in matters of detail. To this trait is doubtless due the great strictness and accuracy with which customs must be proved and will be construed. So far from its being permissible to make the slightest approach to a generalization or to an argument from the closest of analogies, the tendency of the courts has been to trim the usage to its very narrowest proportions, and to require the most perfect adaptation of the facts of the case to these. That two acts are essentially dependent for their exercise upon power of precisely the same description, that one is a natural corollary of the other, that one is conveniently exercised in conjunction with the other, will not suffice to authorize the doing of the second when the right to do the first is dependent upon a custom. Even power to do a certain act arising from a custom to do it for a particular purpose or under particular circumstances, does not imply or include power to do the same act for a very slightly different purpose or under very slightly different circumstances. Supporting an act upon proof of a banking usage is a matter of very delicate and minute accuracy.2

"Internal Usages."

The customs and usages of a bank by which persons outside of the corporation can be affected, are only such as relate to its dealings with such outsiders. Rules, usages, and customs established within the institution itself for the regulation of its internal affairs and of the daily routine of its business, for the government of its clerks, the keeping of its books, and all

1 Cookendorfer v. Preston, 4 How. U. S. 317.

2 Mussey v. Eagle Bank, 8 Met. 306.

like matters, are things with which the public has nothing whatsoever to do. They may be arbitrarily instituted and changed at any time by the government of the bank. They are only for its own convenience. Even if they are known to its customers, no assent on the part of the customers is implied by reason of this knowledge. They do not affect the rights of the customers, in which alone the customers can be supposed to be interested; they are the internal arrangements with which the customer has nothing whatsoever to do whether he knows them or not and whether he approves them or not. Their observance or non-observance is an affair exclusively between the corporation and its servants.1

By-Laws.

A by-law does not constitute a usage; neither is it proof of a usage. If a by-law requires a person having a certain transaction with a bank to perform a certain act, and he in fact does not perform it, he cannot be affected with the legal consequences of a performance on the ground that it was a usage of the bank to require performance, that he knew the usage and must be assumed to have intended to conform to it.2 Thus in the case. cited it was held that to admit evidence of the usage set up would be to admit parol testimony for the purpose of varying the written contract of indorsement; and this of course would be impossible. Further, it was said, the usage claimed, if proved, would be only a usage for the customer to make such an agreement. By strict construction, therefore, it would not, even if fully shown, have any effect upon a transaction in which the agreement was distinctly not made.

A by-law of a bank, or even its usage, if the usage be known to the stockholders, of refusing to allow any stockholder to transfer his stock so long as he is indebted to the bank, is

1 Munn v. Burch, 25 Ill. 35.

2 Central Bank v. Davis, 19 Pick. 373; Piscataqua Exchange Bank v. Carter, 20 N. H. 246.

valid and binding. The bank has a lien upon the shares for the amount of its claim, at least as against the shareholder himself or against his assignees under a voluntary assignment for the benefit of creditors. But whether or not the lien of the bank would be good as against an assignee in bankruptcy or an attaching or execution creditor is a different question which might perhaps receive a different answer. In Massachusetts the point has been considered doubtful.2

Construction of Transfers.

Where a transfer is made to a cashier the question has been already discussed, of whether or not it can enure to the benefit of the bank and under what circumstances. Whether evidence of usage to transfer to the cashier with the design that the transfer shall operate in fact as a transfer for the use of the bank can be introduced, must be regarded as still unsettled. If introduced it would be for the purpose not of varying the contract, but of interpreting it: not of controlling any rule of law, but of explaining the intention of the parties. On this ground it has been held admissible in Connecticut; but by a divided court. In Massachusetts a contrary opinion was intimated, though not directly laid down.4

Construction of Checks, Payable on Future Day certain, as to Grace.

In the chapter upon Checks has been discussed the question of whether or not instruments in their general form checks, but made payable on a future day certain, are or are not entitled to grace. Attempts have been made in some of

1 Morgan v. Bank of North America, 8 Serg. & R. 73; McDowell v. Bank of Wilmington, 1 Harr. 369; Child v. Hudson's Bay Co., 2 P. Wms. 207.

2 Nesmith v. Washington Bank, 6 Pick. 329; Plymouth Bank v. Bank of Norfolk, 10 id. 454.

3 Stamford Bank v. Ferris, 17 Conn. 259.

4 New England Mar. Ins. Co. v. Chandler, 16 Mass. 275 (Per Parker, C. J.), p. 278.

the causes in which this point has been raised to introduce evidence of usage. The difficulty in admitting such testimony has been considered to lie in the fact that it is the proper province of the court to declare what is the legal character of such documents, whether they are checks or bills of exchange. The law, it is considered, must make them imperatively either the one or the other, and according to the decision must be the equally imperative assertion of whether or not they shall bear grace. Usage therefore has been deemed inadmissible, because its only effect, if it should have any at all, must be to control a rule of law. A few authorities sustain this view. It was certainly the view which the court of New York were inclined to take at the time of the decision of Bowen v. Newell. No one who reads that opinion can fail to gather this conclusion from it; and it was upon the strength of this that the Ohio case was decided. But the latest authority in New York is the decision in the case of Bowen v. Newell as last rendered and revised, published in 3 Kern. 290. Here the court say that the lower court have found that the law in Connecticut, where the paper was payable, gives no days of grace upon it; that this finding of the law was upon evidence derived from the best sources and of the most un

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questionable character." By turning to the report of the cause in the lower court 2 we find that this so emphatically excellent evidence, which was allowed so thoroughly to settle the law, was simply evidence of the usage of banks and of persons dealing with banks in Connecticut. The court escape the trouble of reconciling this view with their former contrary one, by the arbitrary assertion that in 4 Selden they only held, that, by the law merchant, the instrument was not entitled to grace. This assertion will satisfy nobody, for it is not true. But its degree of accuracy is a matter of little moment since the last

1 Morrison v. Bailey, 5 Ohio, St. 13; Minturn v. Fisher, 4 Cal. 35. See also Woodruff v. Merchants' Bank, 25 Wend. 673; Bowen v. Newell, 4 Seld. 190. 2 2 Duer, 584.