Note 136 — Chapter VIII · CUSTOM.

In limiting the requirement of immemorial antiquity to local customs, we have, for the sake of simplicity, spoken somewhat more absolutely than the present state of the authorities warrants. The more common, and, it is believed, the better opinion is that the law is as stated in the text. There is, however, some authority for saying that the same requirement exists in the case of certain general customs also. In Crouch v. Crédit Foncier, L. R. 8 Q. B. 374, it was held that modern mercantile custom was powerless to render an English instrument negotiable, although it is well settled that foreign instruments, such as the bonds of foreign governments, may be made negotiable in this way. Gorgier v. Mieville, 27 R. R. 290. The authority, however, of the case in question is exceedingly doubtful. See Goodwin v. Robarts, L. R. 10 Ex. 337; Bechuanaland Exploration Co. v. London Trading Bank, (1898) 2 Q. B. 658; Edelstein v. Schuler, (1902) 2 K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great part of our mercantile law has been derived from modern mercantile custom, and we may assume with some confidence that such custom still retains the law-creating efficacy which it formerly possessed.