
    Richmond.
    
      Governor for Liggatt v. Withers.
    (Absent Daniel, J.)
    1. A custom known and acquiesced in by the party affected by it, will excuse the non-performance of a duty prescribed by law.
    2. To set up such a defence, it must be specially pleaded; and a defendant will not be permitted to introduce evidence of the custom, and of the knowledge and acquiescence of the plaintiff therein, under the general issue.
    
      3. The proof of the custom, and of knowledge and acquiescence therein by the plaintiff) having been introduced on the first trial of the cause under the general issue, without objection by the plaintiff) the defendant will be allowed to amend his pleadings on the return of the case from the Appellate Court, and plead the matter specially.
    This was an action at law brought in the Circuit Court of the town of Lynchburg, in the name of the Governor for the benefit of Alexander Liggatt against Charles A. Withers and his sureties, upon a bond executed by him as inspector of tobacco at Lynch’s warehouse in the town of Lynchburg, in the year 1829-30. The defendants appeared and pleaded “ conditions performed upon which plea issue was joined.
    
      By the act of February 18th, 1823, the rent payable on each hogshead of tobacco “ received, inspected, stored and delivered at Lynchs warehouse, was sixty cents, to be paid to the inspector, fifty cents, a part thereof, to be paid by the inspector to the proprietor.” And the con-tr'oversy in the case was, whether the inspector was liable to pay to the proprietor the rent on what was called strips or doctored tobacco : That is tobacco which had been received, inspected, and stored in the warehouse, and then taken out by the owners, unpacked, and put up in a different form, or mingled with other tobacco which is brought in a loose or unprized state into market, and after it has been thus changed, is brought back in another form to the warehouse, and received, stored and inspected a second time.
    The cause came on to be tried first in 1839, when the defendant introduced evidence to prove that it was a custom at the warehouses in Lynchburg not to charge rent a second time for tobacco which had been taken away and changed as above stated, and again brought back to the warehouse, and received, stored and inspected a second time; and this evidence was not then objected to by the plaintiff. The jury, however, did not agree on a verdict, and they were dismissed, and the cause continued.
    On the second trial of the cause the defendants again offered evidence to prove the custom, and it was objected to by the plaintiff; but the Court permitted it to go to the jury, “regarding the said custom as legal evidence, connected with other evidence of knowledge and acquiescence by the plaintiff; but in the absence of such proof of knowledge and acquiescence, of no validity.” To this opinion of the Court the plaintiff excepted, and the jury having found a verdict for the defendant, on which the Court entered up a judgment, he applied to this Court for a supersedeas, which was granted.
    
      
      Cooke, for the appellant.
    The radical error in this case was the admission by the Court of evidence to prove a local usage or custom at Lynchburg, existing in jtl the very teeth of the recent statute of February 18j 1823.
    The statute alluded to is “ an act concerning the inspection of tobacco.” Supp. Rev. Code 400.
    In Harris v. Carson, 7 Leigh 632, the principle recognized is, “ that a practice or usage, in opposition to the common law, however general it may be, has no force in this country on the ground of custom, because not immemorial.” Now if a general custom, (throughout the State,) in opposition to the common law, has no force, how can a local custom, in opposition to a recent statute, have any force ?
    The statute of 1823 declares that the inspector at the warehouse shall collect and pay over to the proprietor a rent of fifty cents for every hogshead received, &c. The local usage declares that in certain descriptions of tobacco, the inspector shall not demand a rent of fifty cents, or any rent, and is, therefore, not bound to account to the proprietor for rent on such tobacco.
    The opinion of Judge Cabell, in Harris v. Carson, presents the whole doctrine with force and perspicuity. It goes to the whole extent of declaring, that there can be no local custom, (having any force as law,) in Virginia, much less a local custom abrogating a recent statute.
    
    On the question whether an excuse for non-performance of a condition can be given in evidence under the plea of “ conditions performed,” see Fairfax v. Lewis, 2 Rand. 20.
    
      Grattan, for the appellee.
    The question is on the admissibility of the evidence as to the custom. It was not held by the Judge below, nor is it contended for by us, that proof of the custom alone, independent of proof of knowledge and acquiescence in that custom, would be sufficient to defeat the plaintiff’s action. But the Court below held, that proof of the custom, in connection with proof that the plaintiff was informed of that custom, and authorized the inspector to act upon it, was competent evidence. And of that proposition there certainly can be no doubt, unless the Court is prepared to hold that a party cannot, even to subserve his own interests, relinquish, by his most formal act, any of his legal rights.
    The question in this case is not the question considered and decided in Harris v. Carson, 7 Leigh 632. We admit a custom, however general, cannot change the law. But the question here is, cannot a party adopt a custom as the basis of his own action, and agree to'limit his claims by it ?
    The other questions are submitted without comment, on the record.
    
      
       He had been counsel in the cause in the Court below.
    
   Allen, J.

delivered the opinion of the Court.

This Court is of opinion, that the custom existing among the inspectors of tobacco in the town of Lynch-burg, connected with evidence of knowledge and acquiescence on the part of the relator, as set forth in the bill of exceptions taken to the admission of testimony, would have been a good defence to the action, if the same had been relied on by a special plea; and under the circumstances of this case and the conduct of the parties at the previous trial, it would have been proper, and still will be proper, to give the defendant leave, if asked for, to make such defence by pleading the same specially. Yet under the issue joined in this case, it was not competent for the defendant to rely on matter, which went to excuse the principal in the bond from performing a duty prescribed by law, and a failure to perform which, constituted prima facie, a breach of the condition of his bond. It therefore seems to the Court here that the Circuit Superior Court erred in per-«fitting the defendant to introduce the proof of said custom in said bill of exceptions set forth, when objected to by the plaintiff. Therefore it is considered tjjat judgment be reversed with costs, and the verdict set aside; and the cause is remanded for a new trial, on -which, provided the issue remains unchanged, the evidence in said bill of exceptions mentioned, if again offered and objected to, is not to be permitted to go to the jury.  