dissenting, delivered the following opinion :

I take it to be a settled rule of common law, (in the absence of any express contract,) that a carriel1, shipper, or owner, has a lien on the goods, or an action against the consignor for freight, distinctly recognized and acted upon, not only in this State, but in almost every other commercial country, so much so, that it would be idle to attempt, at this day, to adduce authorities to support it. But'it is alleged, that the particular custom, set up in this case, and offered to be proved,;forms an exception to this general rule, and that the proof ought to have been suffered to go to the jury. But the proof, offered in what shape you will, and give it the greatest possible extent you please, will amount to no more than this, that it is the usage in Charleston for the factor to pay the *freight of produce consigned to him. This usage either is or is r^i 9 not consistent with the common law rule. If the former, it does h not abrogate the common law, and may exist with it, and only proves that the shipper, owner or carrier, has by this custom, a remedy against the factor for freight, which was not given to him by the common law, and the evidence was therefore inadmissible : if the latter, then I say that it is inadmissible, .because our books of authority teem with cases in which the ship owner or carrier has recovered against the consignor the *376freight of his produce. I venture to assert that, upon examination of the proceedings of the several Courts' in this State, hundreds of cases will be found in which plaintiffs have recovered on this cause of action, and under the same circumstances. One, the title of which has escaped my recollection, was tried by myself at Camden, about a year since, and not a word had before been heard of this custom. But it is further said, that this was a question for the jury, and therefore the evidence ought to have gone to them. I admit that the existence or non-existence of a particular custom in a question exclusively for the consideration of a jury, but its legality is a question of law which belongs to the Court to decide. It belongs to the Court to decide, because the Court alone are presumed to know the law; and when the question is once determined, that the custom set up is either consistent with, or contrary to, the known and established rules of law, to suffer such evidence to go to the jury, would be at once to break down ’all distinction between the powers of the Court and.jury, and produce consequences, the tendency of which are not easily foreseen. I regret that time has not permitted me to enter into this case so fully as I wished and intended. It appears to me, however, to depend upon principles that cannot be misunderstood, and which, from the best consideration I have been able to give them, lead me to the conclusion that the opinion which I entertained *on trial, in the Court *13] below, was correct, and that the evidence was .properly rejected.

The opinion of the Court was delivered by

In this case, the only point for the consideration, of the Court is, whether the defendant could legally have gone into proof of the custom and usage contended for. By the Act of December, 1712, I Brevard’s Dig. 136, P. L. 99,1 making the common law of England of force here, exception is made to so much thereof as is “ inconsistent with the particular constitutions, customs and laws of the province.” Here is seen a plain recognition of existing customs, at that period ; and in relation to which the common law is made to give place. The customs alluded to, are not specifically defined, and local usages may be embraced within the generality of the expression used in the Act. The object of the defendant, in this action, was to introduce evidence of a particular custom ; and authority is not wanting to show, that it is the province of the jury to decide thereon. See Doctor and Student, c. 7, 10. 1 Inst. 110. How far the defendant might or might not have been able to es*375tablish, by proof, such a custom, it is impossible to say, as the evidence was rejected. Now, although, at the first blush, the custom alleged may appear unreasonable, and such as ought not to prevail, this is by no means conclusive, that the usage was not a good one in law. In such cases, recourse is had to artificial and legal reason ; and thus considered such usage may be shown to be beneficial to the boat owners themselves, and dictated by the soundest policy of expediency. It is possible the the defendant may find it a difficult undertaking to defeat the claim of the plaintiff, by any proofs which he shall be able to produce, in confirmation of the custom relied on; but no judgment can or ought to be formd till the proofs are brought forward. I am not prepared to say, that, in undertakings of this kind, the general law may not become altered by the understanding* of the'contracting parties, although such understanding places them upon a different footing from that which L exists at the common law.

It is competent, for a man, or a body of men, to renounce a common law right, if they think proper; and if, in relation to the river trade, either from views of interest, on the part of the boat owners, or other politic considerations, expediency has pointed out the propriety, and usage has sanctioned it, then it might become the law by which the contract should be expounded; nor can I see how it would, in any manner, infringe upon the principles of the common law. It cannot be denied, but that by an express agreement, the consignor maybe absolved from all responsibility ; and established usage and custom, bottomed upon expediency, and the convenience and interest of the parties, may have the same effect.

I am of opinion, that the defendant should have been permitted to have gone into evidence of the custom, that it was the province of the jury to decide thereon ; and that a new trial should be granted.