1. Upon the trial, the defendants were allowed to prove, against the plaintiff’s objection, that it was customary in all the manufacturing establishments in the city of Lowell to make monthly payments of wages to the persons employed in them It is, no doubt, a general rule of law, that a custom, unless it be one which is ancient or of very common prevalence and well known in the community, cannot be availed of unless the knowledge of it is brought home to the party who is to be affected by it. Stevens v. Reeves, 9 Pick. 198. Clayton v. Gregson, 5 Ad. & El. 302. If, therefore, the defendants had not offered to show both the prevalence of the custom and the knowledge of it by the plaintiff, this objection to the proposed evidence should have been sustained; because, if not shown to have been known to him, they were not entitled to use it, against his will, to their advantage. In such case, testimony to prove the existence of the custom would have been inadmissible, for it would have been useless to hear evidence of which no legitimate use could be made. The defendants pre ferred no claim in opposition to this rule; but they contended that, upon the whole proof which would be produced on their part, it would appear, and the jury would be satisfied, that the plaintiff did have knowledge of the custom ; and they therefore accompanied their offer to prove it with an offer to prove also ffiat it was known and understood by the plaintiff. Upon this ground the evidence offered was competent, and therefore proper*86ly admitted; and it appears from the bill of exceptions that this question of knowledge on the part of the plaintiff was argued and submitted to the jury. The instructions given to them by the court on the subject are not stated in the bill of exceptions ; but as no complaint is made of them, it is to be presumed that they were accurate and correct, under which the rights of both parties were undoubtedly protected.
2. The refusal of the presiding judge to rule, in conformity to the request of the plaintiff, that there was no evidence in the case tending to show that the plaintiff had emancipated his minor son, or had given him his time while he worked for defendants, or had waived the right to recover for his services in then- employment, was certainly required, in view of the proofs which had been adduced and submitted to the jury. He knew that his son was in the service and employment of the defendants, earning wages, which he himself had not asked for or demanded; that he had supplied him with only very inconsiderable sums of money during that time, for the payment either of his board and clothing or other expenses; and, if the jury should find that he also knew of the custom alleged by the defendants to exist, and of which they insisted that there was sufficient proof, it would seem to be very difficult to avoid the inference, or deny the conclusion, that he had given his time to his son, and consented that he should receive and appropriate to his own use the wages which he earned. But, at all events, the facts and circumstances which were in evidence had such a degree of significance as necessarily to preclude the court from determining, as upon a mere question of law, that there was nothing for the plaintiff to answer, and that the defendants had offered no evidence to rebut the prima facie case which he had made out.
3. The plaintiff has no just cause of complaint that the court did not rule at all upon his proposition, that the law would not raise a presumption, against his positive declaration to the contrary, made in good faith at the time when his son was in the defendants’ employment, that he had waived his right to demand and recover to his own use the wages which had been *87and which should be earned. There seems not to have been any proper occasion upon which to call for such ruling. It does not appear that the defendants insisted, or even suggested that there was, or that they proposed to rely upon, any such presumption. On the contrary, they rested their defence, so far as can be seen from anything reported in the bill of exceptions, upon the ground, which they contended was fully established by the circumstantial evidence in the case, that the wages earned had been paid with his knowledge and consent and by. his authority to his minor son. It was impossible therefore for the court to accede to the plaintiff’s request upon this subject. The defendants had a right to insist that the whole issue;, and every question of fact upon which they were to pass, should.1 be determined by the jury upon all the evidence which had been laid before them. This was in substance, instead of that which was asked for by the plaintiff and properly refused by the court, the instruction given them. Under it they returned a verdict for the defendants; and we can find no reason, in any of the plaintiff’s exceptions, why judgment should not be entered upon it. Exceptions overruled.