Bissell v. Ryan
23 Ill. 566
Ill.
1860
Check Treatment
Breese, J.

The juror Bolton was incompetent, and the challenge should have been allowed. There should be no mistаking the act of 1859, by those who are acquainted with the mischief it was designed to remedy. There had grown up, in our Stаte, a formidable corps of professional jurors; persons who, having no honest means of livelihoоd, or not resorting to them, if they had, were found, at every term, hanging about the court-houses, importuning the sheriffs and thеir deputies, and seizing every occasion to be put upon the juries—making their living, in fact, by jury service. If they cоuld not get upon the petit jury, they were content to serve on the grand jury, as the pay was the same; onе or the othér jury, they would contrive to get. on. This disgusting and disreputable eagerness to be upon juries, occurred at every term. The design'of the act of 1859, was to put a stop to this, and plainer language could not be used to express the intention. The act declares, “ That, hereafter, it shall be sufficient cause of сhallenge to any juror called to be sworn in any cause, that he has been sworn as a juror, at any term оf court held within a year prior to the time of such challenge.” (Session Laws 1859, p. 154.) This is a sweeping exclusion. Hаving been sworn as a juror—not in a cause, but “ sworn as a juror at a term,” is the point of the exclusion. The act intended to break up the profession, and we will aid the law by giving it the most liberal construction to effect thаt end.

The evidence of the custom, as sought to be proved by Dr. Helm, ‍​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​‌​​​​​​‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌‍was not sufficient to establish the custom claimed to exist.

The proper office of a custom or usage in business, is to ascertain and explаin the intent of the parties, and it cannot be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established prinсiples of law. SomerbyY. Tappan, Wright’s Ohio R. 573; Frith v. Barker, 2 Johns. 335 ; Homer v. Dorr, 10 Mass. 28. Besides all, it must be generally known and established, and so well settled and so uniformly acted upon, as to raise a fair presumption, that it was known to both contracting рarties, and that they contracted in reference to it, and in conformity with it./ A usage, such as that spoken of by Doctor ‍​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​‌​​​​​​‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌‍Helm, and he was by no means certain about it, ought to be like the practice of carrying gоods for hire, which cannot be established by proof of one instance, but by an accumulation of instances. It cannot be established by evidence of opinion merely. Cunningham v. Fonblanque, 25 Eng. C. L. R. 274.

A custom to charge for the insertion of an advertisement in a newspaper cannot be supported, when it appears on its face that the object for which it was inserted, is bad, although no discontinuance of it had been ordered. 1 Rep. S. Car. Const. Ct. 310.

The court say in this case, to establish a usage, it ought to be proved to be so general, uniform and frequent, as to warrant an inference that the party against whom the right is claimed had a knowledge of it, and contracted with reference to it. It will rarely happen that one witness will sufficiently establish а usage. It will generally be desirable, when a particular usage is relied on, to establish ‍​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​‌​​​​​​‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌‍it by the testimony of sevеral witnesses; and if it be a well-established usage, as it ought to be, this will not be difficult—and an usage, to be valid, must be reаsonable. ( In regard to a commercial usage, the true test is, its having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it. Smith and Stanley v. J. &. J. Wright, 1 Caines’ N. Y. R. 44. And this should be the test of all usages claimed. The books are full of cases to this point. Stevens v. Reeves, 9 Pick. 198; Wood v. Hickok, 2 Wend. 501; Dixon v. Dunham, 14 Ill. R. 324.

All the authorities concur in saying, that if usage is relied upon, it must be shown to be anciеnt, certain, uniform, ‍​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​‌​​​​​​‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌‍reasonable, and so general as to furnish this presumption of knowledge by both parties. Stevens v. Reeves, 9 Pick. 197; Collins 8f Co. v. Hope, 3 Wash. C. C. R. 150 ; Wood v. Hickok, 2 Wendall, 504; Rapp v. Palmer, 3 Watts, 178.

Nor is a practice оr usage in opposition to the common law, however general it may be, of any force in this State, оn the ground of custom, because it is not immemorial, that being the essential ingredient of a good ‍​‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌​‌​​​​​​‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌‍custom. Such а usage may, however, be looked to, if well proved, as having been within the contemplation of the parties when they contracted, and may, therefore, be regarded as an exponent of the contract. 7 Leigh, 639.

Nor can the usage of any class of men be established by the testimony of a single witness. Wood v. Hickok, 2 Wend. 501, before referred to ; Holwerson v. Cole, 1 Spears, (S. G.) 821. The testimony of Dr. Helm, so far as it went to this point, was very general and unsatisfactory, and fell far short of proving the custom as one known, and generally acquiеsced in. He said he did not know how general it was, even in the community in which he lived and practiced. All the testimony on this point should have been withdrawn from the jury, and the second instruction of the plaintiff refused, and the fourth instructiоn asked by the defendant should have been given.

We do not think the action of the court, in recalling the jury to put in form the verdict they, had found, objectionable ; certainly not sufficiently so to justify a reversal of the judgment оn that account.

For the reasons given, the judgment is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

Judgment reversed.