arose as to the effect of a custom of an innkeeper, to put luggage into his guests' rooms upon his liability for it. It was held that if the innkeeper did not mean to be liable for goods thus placed, he should have said so. Cowen, J., says, in Gibson v. Culver, 17 Wend. 311 [31 Am. Dec. 297], that if the guest had come to a full knowledge of the landlord's practice, either by its general notoriety, or in any other way, it would be equivalent to notice. In this case, it was held that a custom of such age, uniformity, and notoriety, that a jury would feel clear in saying it was known to the plaintiff, would be sufficient.

Courts take no notice of these local and particular usages. They are to be proved, like other facts, and necessarily by parol evidence.

It must appear to be so well settled and of so long continuance as to raise a fair presumption that it was known to both contracting parties, and that the contract was made in reference to it: Eager v. Allas Ins. Co., 14 Pick. 141 [25 Am. Dec. 363].

The question is, whether the parties contracted in reference to the usage, and, in this view, the fact of its being well established so as to be generally known to persons engaged in this course of business, is of importance, but not its antiquity: Thompson v. Hamilton, 12 Pick. 425 [23 Am. Dec. 619]. So also is Williams v. Gilman, 3 Greenl. 276, in which case there was some contradictory evidence as to whether a certain usage existed at Hallowell. So, also, Heald v. Cooper, 8 Id. 32.

In action of assumpsit for goods sold, the defense was that they were sold on a credit which had not expired when the action was brought. But it was held that the usage of an individual, known to persons with whom he deals, binds them: Loring v. Gurney, 5 Pick. 15.

To prove a usage to tranship goods from one packet to another, it is not enough that a few instances can be produced where it has been done without objection. The course of the trade must be uniform and general, and should be so well settled that persons engaged in the trade must be considered as contracting with reference to the usage: Trott v. Wood, 1 Gall. 443.

In Van Ness v. Pacard, 2 Pet. 137, evidence was offered both to prove and disprove the existence of a usage that, in Washington, a tenant may remove buildings erected by him on the premises, if done before the expiration of the term. It was held that the evidence was competent; that whether it was such as ought to have satisfied the minds of the jury on the matter of fact,

was solely for their consideration; open, indeed, to such commentary and observation as the court might think proper to make. "We can not say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect upon their judgment; but in a legal sense, it was within their own province to weigh it as proof or as usage:" Renner v. Bank of Columbia, 9 Wheat. 581; Furniss v. Hone, 8 Wend. 247.

In the case of Wood v. Hickok, 2 Wend. 504, it was held that evidence that it is the uniform practice of grocers to charge interest on goods sold after ninety days, does not amount to proof of the usage of a particular trade, of which all dealers in that line are bound to take notice, and are presumed to be informed. But if knowledge were brought home to the defendants of the usage of the plaintiffs, semble they would be bound by it.

The usage must be proved as a fact, and like any other fact. It is not one of those matters which may be proved by hearsay. Reputation is not evidence of it. It is a part of the contract which the parties made at the time, or it is nothing. If it be proved to be so generally known that the parties must fairly be presumed to have contracted in reference to it, it will bind them. Contradictory evidence may exist in relation to it, and the jury must weigh all the evidence, and come to a conclusion upon it. Such are the results which the authorities warrant.

The defendant's evidence tended to prove that, by the usage, goods not bought for cash are bought on a credit of six months, where the bills are not marked. These bills were not marked. Some witnesses stated that the usual time of credit was six months where bills were not marked. Others, that they always bought on six months, and their bills were not marked.

The plaintiff offered evidence that there was no such usage. This evidence the jury are to weigh.

The instruction of the court as to the usage was sufficiently favorable to the plaintiff. It was that the usage must "be uniform, known, and established." If it were so generally known that the parties may be considered as having contracted in reference to it, that is enough.

As to the admissibility of the deposition, it was taken at Manchester, where the witness resided, to be used at Amherst, a distance of more than ten miles. The trial was had at Manchester, at the October term of the court of common pleas. The practice has been, in such cases, to admit the deposition,

AM. DEO. VOL. LI-14

as it was properly taken to be used at Amherst.

The mere fact

that the term where the trial was actually had was held at Manchester, has not been held sufficient to exclude the deposition, unless the witnesses, as in other cases, were produced in court, as is often done by the party who objects to a deposition. The place of trial, at the time the deposition was taken, was, by law, at Amherst, and the fact that the case was not tried there, but was continued to the next term at Manchester, is not sufficient to render the deposition incompetent.

Judgment on the verdict.

USAGES AND CUSTOMS, VALIDITY OF: See Governor v. Withers, 50 Am. Dec. 95, and note, where the subject is discussed at length.

CUSTOM, TO BE BINDING, MUST BE GENERAL, Frequent, and ANCIENT: Leach v. Perkins, 35 Am. Dec. 268, and note, where other cases are collected.

DEPOSITION IS NOT ADMISSIBLE without proof that the witness can not attend: Jackson v. Rice, 20 Am. Dec. 683.

BOODY V. Davis.

[20 NEW HAMPSHIRE, 140.]

DELIVERY OF DEED, WHAT CONSTITUTES.-Where a grantor executes a deed, delivers it to be recorded with the intent that title shall pass to grantee, and the grantee assents, the delivery is sufficient.

GRANTEE'S POSSESSION OF DEED IS EVIDENCE OF DELIVERY, for things shall be presumed legally and properly in their present state unless the contrary be shown.

GRANTEE IS PRESUMED TO ASSENT TO DEED MADE FOR HIS Benefit. SUFFICIENT DESCRIPTION OF NOTE SECURED BY MORTGAGE.-The omission of the sum, date, or name of one of the signers of a note is not fatal if it can be identified.

IN CONDITION TO SAVE HARMLESS AGAINST NOTE OWED, any description identifying the note is sufficient.

WRIT of entry upon a mortgage. The mortgage was duly executed, and was recorded at the tenant's request, and he afterwards declared he had mortgaged the premises to the demandants. It appeared that a note similar to the one described in the condition of the mortgage, except it had also Dudley Pike's name on it, had been discounted at the bank, and no other similar note had been. It was also shown that the bank sued on the note, and Hayes, one of the signers, paid it. Defendant's counsel excepted to the evidence, as incompetent to prove the delivery of the deed, and contended the note produced did not

substantially correspond with the one described in the mortgage. The court overruled the exceptions, and instructed the jury that if Davis in his acts intended to pass title to the grantees, they being willing, they would amount to a delivery of the deed; and if the note produced was the one intended to be described by Davis in the mortgage, the description was sufficient, though Pike's name was omitted. Defendant excepted to these instructions. Verdict for demandants, and tenant moved to set aside the verdict and for a new trial, for the supposed errors alleged.

Hobbs, for the tenant.

Christie, for the demandants.

By Court, WILCOX, J. The evidence was competent to show a delivery of the deed. It was duly executed and acknowledged, and was sent to the office of the register of deeds to be recorded. This was all done by the tenant, and it was his intent that the title and the deed should pass to the grantees. The demandants have assented to the delivery. They have received the deed, have brought their action upon it, and upon the trial have produced the deed in court.

Possession held by the grantee of a deed duly executed, is alone competent evidence of a delivery, for things shall be presumed legally and properly in their present state unless the contrary be shown: 1 Cow. Phil. 1284; Canning v. Pinkham, 1 N. H. 353; Buffum v. Green, 5 Id. 71 [20 Am. Dec. 562].

Indeed, when a deed is delivered to a third party, with an intent on the part of the grantor that it shall take effect for the benefit of the grantee, the assent of the latter is presumed, and the deed takes effect from the act of delivery: Townson v. Tickell, 3 Barn. & Ald. 36; Peavey v. Tilton, 18 N. H. 151, Strafford county, July term, 1846; so that there is no occasion to resort to presumptions to enable us to conclude that the deed has come into the hands of the demandants by means of a regular delivery by the tenant. There has been a regular delivery of the deed by the tenant to the recording officer, with the intent that it should pass to the grantees, and should in fact inure for their benefit from that moment. It was, in short, delivered to that officer for their benefit. Their assent to it, which is a legal presumption at that moment, has been established as a fact, by their subsequent acts that have been adverted to.

But the defense upon which the tenant relies more fully is founded upon the statute of July 3, 1829, N. H. Laws. 448

This statute provides that "no title or estate in fee simple, etc., shall be defeated or incumbered by any agreement whatever, unless such agreement or writing of defeasance shall be inserted in the condition of such conveyance, and become a part thereof, stating the sum or sums of money to be secured, or other thing or things to be performed."

The condition of the mortgage in controversy is, that if the tenant, his heirs, etc., "shall pay unto the savings bank, in Dover, known by the name of the Strafford Savings Bank, or the president and directors, their heirs and assigns, the full onehalf part of a note, signed by David Davis, John Chadwick, Solomon Hayes, and Joseph Boody, and keep the said Boody and Hayes harmless from the one full half part, and John Chadwick is in for the other half, then the foregoing deed is to be void," etc.

The note produced is dated January 30, 1836, and is payable to the Strafford Savings Bank, in Dover, or their order, for one thousand dollars, payable on demand, with interest after six months, and is signed by all the persons named in the condition of the mortgage, as signers, and by Dudley Pike in addition.

The condition of the deed, therefore, does not specify the date of the note, nor its amount, nor to whom payable, unless by implication, and omits the name of one of the signers.

If this case comes within the statute of 1829, and the condition of the deed does not sufficiently set forth the thing to be done, then, by the express provision of the statute, the result is that the demandant's title to the land conveyed is absolute. The statute enacts that no title in fee simple shall be incumbered, or defeated by any agreement, unless inserted in the condition, etc. The deed is sufficient in all its parts to pass a fee simple to the demandants, and that estate can not be defeated at all, unless there is something in this condition that is sufficient to defeat it. The demandants are therefore entitled to recover, unless they have in their declaration counted specially upon a mortgage; and in that case, by amending their declaration and counting generally upon their own seisin in fee simple, they would be entitled to recover at all events, and the tenant would be without any remedy at law.

This is not the result that the tenant desires. He asks that the deed itself may be held void, because the condition is not sufficiently certain, and is not what he supposes the statute to require; whereas the statute provides, not that the deed should be void, but that it should be absolute in the supposed case of