are bound to judicially note the existence of such usage. To borrow the words of Chief Justice Caton, "courts will not pretend to be more ignorant than the rest of mankind." If evidence became necessary in this case to prove that the usage in question was generally understood and in common use by the taxpayers and people of this state and of the western states generally, then, and for the same reason, evidence would be needed to certify the same facts to any other trial court in the state in which the question might arise: Vanada v. Hopkins, 1 J. J. Marsh. 285; 19 Am. Dec. 92; Bailey v. Kalamazoo Publishing Co., 40 Mich. 251.

The judges of the supreme courts of Minnesota and North. Dakota alike rest under an official obligation to notice without proof such usages and customs as have become general among all classes of people in these states; yet in both states the courts have held squarely that the symbol writing, such as is found in the tax-rolls in this case, has not the sanction of general usage in such states, respectively. When a usage becomes general the courts will notice the same: Bishop on Contracts, sec. 445. It is true that many usages are not judicially noticed in the courts. Such usages are often shown to exist by testimony. "The leading distinction between customs, considered as usage, and law is, that the former is restricted to a particular locality or class of persons, or business, while the latter is universal throughout the state": Sec. 446. When a usage is special, i. e., limited to a particular locality or business or class of persons, the judges are not always supposed to be aware of its existence, and hence proof is sometimes resorted to, when the fact is disputed, to establish or disprove the existence of the usage: Sec. 450. When it is shown that 119 a particular usage existed and was known to the parties to the contract, such usage may, and often does, modify the contract: Secs. 449, 456. Blackstone makes the same distinction, and defines the two classes of customs as follows: "General customs, which are the universal rule of the whole kingdom, and form the common law in its strict and more usual signification; particular customs, which for the most part affect only the inhabitants of particular districts": 1 Blackstone's Commentaries, 67. The books are replete with decisions illustrating and applying the general doctrine that special customs and the usages of trade may be shown by testimony produced in court for the purpose of modifying contracts: Barnard v. Kellogg,

10 Wall. 383; Walls v. Bailey, 49 N. Y. 464; 10 Am. Rep. 407; Collender v. Dinsmore, 55 N. Y. 200; 14 Am. Rep. 224. But, as we have seen, such customs as have ceased to be special, i. e., local as to territory or limited as to classes, and have become generally known, used, and understood by the people and taxpayers of the whole state, and of many other states, no longer need to be proved, because all courts and judges are bound to know such matters of fact, and such usages and customs as are so notorious as to be commonly known. This general proposition is elementary: Stephens' Digest of Evidence, 124, and notes. The matters judicially noticed are very numerous, and need not be enumerated here. It will suffice to say that all authorities agree that the vernacular language, and such ordinary abbreviations as are in common use, are noticed without proof: Reynolds on Evidence, 68. To prove facts commonly known is regarded by the courts as a waste of time, and for that reason is not permitted: Reynolds on Evidence, 66. While authority abounds showing that special customs may be established by testimony, we have searched laboriously, but in vain, for a precedent which authorizes the introduction of evidence to establish the existence of a custom of language which is alleged to be generally known and understood by the taxpayers and people throughout an entire state or nation. It is, in our view, obviously unsound to argue that the courts or judges of a state or nation may be considered as unaware of the existence of a custom of language which 120 is claimed to be so notorious that it is known and used generally by the taxpayers and people throughout the entire state or nation. At all events it is fundamental in the law that courts are bound to know such notorious facts, matters, and usages of language as are generally known to other people. We are not regardless of the fact that the English language has reached its present state by processes of growth and development, and that new words, phrases, and abbreviations are from time to time ingrafted upon the body of the language. The process of growth and accretion will continue, and it is possible, though we do not expect the event, that the shorthand or symbol writing in question will cease to be what we now consider it, viz., a special clerical usage limited in its use, for the most part, to certain officials (United States land office officials and certain county officials) and

eir clerks and deputies, and emerge into common use.

Should this transpire, courts and judges, under their oaths of office, will take judicial cognizance of the event, and will then uphold the validity of the symbol writing in assessment-rolls as a basis of taxation, and of building up and transferring title to real estate. Should the symbol writing become general as a means of describing land, there would then be no more occasion to offer proof of the usage than there now is to establish any other common usage of the vernacular language. In the event supposed, the symbol writ ing, as a means of describing realty, would be quite as familiar to all who speak and write the language, including all well-informed women and advanced pupils in the public schools, as the older methods are now familiar to them, i. e., descriptions by the use of English words or common fractions.

It is manifestly true that if the symbol writing can be established as a common custom, by a finding of fact based upon testimony, it must follow that its nonexistence as a common custom can be certified in the same marmer. To illustrate our meaning, let us suppose that, instead of standing upon his objection to filing the amended answer, plaintiff's counsel has seen fit to appear and cross-examine defendant's witnesses, and then had 121 offered rebutting testimony sufficiently strong to have overcome defendant's testimony, as we think would not have been at all difficult to do. Then in the hypothetical case the finding of the trial court as to the usage must have been the exact opposite of that which is before us. But shall so important a matter as the existence or nonexistence of a general usage of language or symbol writing in describing land, turn upon the varying financial abilities of suitors, or the uncer tain vigilance and skill of counsel in arraying testimony, where the amount of testimony, from the nature of the case, is practically inexhaustible? There is, we think, practically no limit to the number of witnesses pro and con who will honestly testify to the result of their personal experiences and observations as to the prevalence and extent of the custom. In one case the affirmative side will preponderate, and in the other the negative. But to place the public revenues and titles to land upon such a shifting basis would be to rest them upon a foundation of quicksand. This argument has been anticipated, and to meet it counsel cite 2 Greenleaf on Evidence, 249. We quote from the author a paragraph

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which counsel have italicized in their brief: "And after having been frequently proved in the course of successive legal investigations, . . . . will take notice of it without further proof." According to this, the courts are not to take cognizance of a usage until it has been frequently proved." When not proved at all, or when disproved, the holdings would, according to this, be different. But the learned commentator is here confining his observations to a particular class of special customs, i. e., "usages of trade." It would have been nearer the mark, we think, from the standpoint of defendant's counsel, to have cited the previous section, 248. There the author is treating of a still wider class of "special customs," viz., "local customs,"" established by common consent and uniform practice from time immemorial." But in both sections of the treatise the learned commentator is confining his remarks to "special customs." As has been shown such customs and usages are very frequently proven in court as a means of interpreting contracts, and sometimes to annex terms 122 to contracts. But reference to the averments of the amended answer shows that the idea of a special custom is distinctly negatived by the answer; nor would counsel contend that a mere special custom should receive judicial sanction as a means of building up title to land. A description in the tax-roll, adjudged to be valid, in one county or locality in the state, must be held good in all parts of the state; otherwise, chaos in tax proceedings and in land titles would supervene.

The considerations already advanced have satisfied a majority of this court that the averments as to a general usage of language pleaded in the amended answer present a state of things which ought not to be left to the chances of nisi prius trials, and be permitted to be proved or disproved, as it might turn out. Hence we shall sustain plaintiff's assignment of error predicated upon the order of allowing the amended answer to be served and filed. The chief justice (Judge Bartholomew), while fully agreeing with the majority of the court in holding that the descriptions in question are without the sanctions of any general custom or law, and hence are insufficient as a basis of taxation, prefers to rest his concurrence on this branch of the case upon a somewhat different line of reasoning. I quote his language: "A description of realty in an assessment-roll, to be sufficient, must be such a one as the law recognizes. It is not enough that it

be such as may be, in fact, understood, or often or generally used. It must be such as must be understood in the sense that the law will not listen to the declaration that it is not understood. A defective or ambiguous description in a deed or contract may be cured by ascertaining the intention of the parties to the instrument, and giving effect to such intention. But this cannot apply to an assessment. Tax proceedings are in invitum, and there are no contracting parties. Primarily, the description must be such that it must be understood by, and will not mislead, the owner. It must also go further, and be such as must be understood by all persons desiring to purchase at tax sale. Theoretically, this includes all persons capable of contracting. 123 A description that must be thus generally understood should have a more certain basis than a mere fact, because ignorance of fact can always be used as an excuse or defense. It must be based upon the law, and this may be upon an express statute authorizing the description, or it may be upon common law, or, what is the same thing, custom. Sir Will iam Blackstone said, in substance, that was the pride of the English common law that it was but the customs of the people, adopted by themselves, and resting upon immemorial usage: 1 Blackstone's Commentaries, 73, 74. There is a clear distinction between usage, however general, and custom. Usage is local practice, and must be proved. Custom is general practice, judicially noticed without proof. Usage is the fact. Custom is the law. There may be usage without custom, but there can be no custom without usage to accompany or precede it. Usage consists of a repetition of acts. Custom arises out of this repetition. Usage is the evidence of custom. Usage is inductive, based on consent of persons in a locality. Custom is deductive, making established local usage a law: Wharton on Evidence, sec. 965; Anderson's Law Dictionary, 'Custom' and 'Usage.' From these definitions it would seem to follow that there may exist a usage that would affect or control a contract, and yet not reach the dignity of a custom or law; and it has been so ruled: Carter v. Philadelphia Coal Co., 77 Pa. St. 290; Morningstar v. Cunningham, 110 Ind. 333; 59 Am. Rep. 211. These distinctions between usage and custom have not always been observed. The words are often used interchangeably, and not a little. confusion has followed this inadvertence. But if we give proper prominence to the thought that one is fact, and the