
    E. S. Thomas against Graves and Toomer.
    Charleston,
    May, 1817.
    Where a printer continues an advertisement for a great lon°-fh of time in his paper, jnu<*h beyond the evident ocra-ion, Hie Jury iviU'be ju^Hhcd* in deducting from the amount of his bill, even though no express limit was putin the original order for its insertion.
    In this case the plaintiff, who was editor of a gazette, brought his action in the City Court of Charleston to recover the amount of a demand for inserting an advertisement in his paper a certain number of times. The advertisement had been sent to the plaintiff’s office without any express directions as to the number of times it should be inserted. The defendants contended they were only liable for a reasonable number of insertions, and particularly that they were not liable to the full amount of this demand, because its nature forbade its insertion so long. The advertisement was one whose objeqt was necessarily confined to the winter season, and yet the plaintiff continued to publish it long after that, season was past. The plaintiff insisted that it was the usage of the publishers of gazettes to insert the advertisements which were sent to them without express directions as to the number of insertions, until their publication was expressly countermanded, and he called a witness who swore, generally, that this was the usage.
    The Jury gave a verdict for a small part of his demand, and judgment was rendered accordingly.
    From this decision the plaintiff appealed to the Circuit Court for Charleston District. In May Term, 1812, the case was tried before Mr. Justice Bay, who confirmed the decision of the City Court, and ordered that the appeal be dismissed.
    mi usage: ana any usage, to be treasonable6al‘
    A motion is now made to reverse the decision of the Circuit Court, on the ground that the verdict of the Jury was against uncontradicted and sufficient evidence.
   Cheves, J.

delivered the opinion of the Court.

Although a Jury are generally the proper judges of facts, and therefore the Court will npt nicely weigh the testimony in reviewing their verdicts, yet it would have no hesitation in setting aside a verdict against uncontradicted and sufficient evidence. But I think that is not the case here ; the evidence was to establish a usage. 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. (Whitaker’s Law of Carriers, 31. Rushforth v. Hadfield, 6 East, 519; Smith and Stanley, v. J. and I. Wright, 1 Caines’ Rep. 45.) It will rarely happen that one witness will sufficiently establish a usage. In this case the testimony of the witness seems to have been very general, and therefore not very satisfactory. It Wlll generally be desirable, when a particular ^ usage is relied upon, to establish it by the testimony of several witnesses; and if it be a well established usage, as it ought to be, this will not be difficult, But it may be questionable whether any evidence of usage would support the claim in this case in its whole extent. The charge is said to be partly for inserting an advertisement long after the object of it had ceased, and when the fact was apparent on the face of it. Such an application of the alleged usage would be unreasonable, and a usage to be valid must be reasonable. But independent of this last view, I cannot say I am dissatisfied with the verdict of a Jury which has refused to recognise a usage proved by the testimony of but one witness, and that in very general terms.

Cogdell, for the motion.

Lance, contra.

I am therefore of opinion the motion should be refused, and that is the unanimous opinion of the Court.  