Requisites of user as evidence of custom. the exercise of the right that lets in the evidence of reputation" (u). In Hanmer v. Chance (x) it was held that a custom for copyholders to dig vitreous sand in their tenements was sufficiently proved by evidence of digging for twenty-seven years, and in Rex v. Joliffe (y), twenty years' regular usage uncontradicted and unexplained was held to be cogent evidence for the jury to presume that the custom was an immemorial one. It has been held that the absence of any mention of a custom in a custumal which has been compiled within legal memory is conclusive evidence against the existence of the custom alleged (≈): but in a later case it was said that a special custom in a manor that the purchaser of several distinct copyhold tenements under one disposition must take admittance to all at one and the same time, and pay one general fine in respect of all, might be evidenced by a uniform course of practice or usage in the manor for a number of years, although no mention of the custom as alleged appeared either on the court-rolls or in any of the custumals or other records of the manor (a). With regard to the usage which will prove a custom, it must be shown that it has been peaceable and continuous from time immemorial. This does not mean that there must be proof that the usage has existed since the commencement of legal memory in the reign of Richard I., but it is necessary that there should be modern user from which the immemorial origin may be presumed, and nothing to upset the presumption. In other words, there must be proof that there has been actual usage and that there has been no interruption in the right, though there may have been discontinuance in the user or enjoyment of the right (b). As custom is a local law, it cannot be got rid of (u) Phill. Evid. i. 249; see Weeks v. Sparke, 1 M. & S. 679. (x) 4 De G. J. & S. 626. (y) 2 B. & C. 54. (2) Portland (Duke of) v. Hill, L. R. 2 Eq. 765. (a) Johnstone v. Spencer (Earl), 30 Ch. Div. 581. (b) Co. Litt. 110 b, 114 b; Co. Copyh. s. 33; Case of Tanistry, Dav. 28 b; Com. Dig. Copyh. (S.). except by Act of Parliament, but long-continued non-user in modern times will be strong evidence of its never having existed (c). It must also be shown that the usage has been reasonable, that is, not absurd immoral or prejudicial to the interests of the State, nor destructive of the property where the custom is to be exercised or of the copyholder's estate, but such as can fairly be imagined to have originated in an agreement before the time of memory. "It is not easy," says Lord Cranworth, "to define the meaning of the word 'reasonable' when applied to a custom regulating the relation between a lord and his copyholders. That relation must have had its origin in remote times by agreement between the lord, as absolute owner of the whole manor in fee simple, and those whom he was content to allow to occupy portions of it as his tenants at will. The rights of these tenants must have depended in their origin entirely on the will of the lord, and it is hard to say how any stipulations regulating such rights can, as between the lord and tenant, be deemed void as being unreasonable. Cujus est dare ejus est disponere. Whatever restrictions, therefore, or conditions the lord may have imposed, or whatever rights the tenants may have demanded, all were within the competency of the lord to grant or of the tenants to stipulate for. And if it were possible to show that before the time of legal memory any lawful arrangement had been actually come to between the lord and his tenants as to the terms on which the latter should hold their lands, and that arrangement had been afterwards constantly acted on, I do not see how it could ever be treated as being void because it was unreasonable." "When it is said that a custom is void because it is unreasonable, nothing more is meant than that the unreasonable character of the alleged custom conclusively proves that the usage, even though it may have existed immemorially, must have resulted from accident or ... (e) Hammerton v. Honey, 24 W. R. 603. Custom in one manor no evidence of custom in another. indulgence and not from any right conferred in ancient times on the party setting up the custom" (d). Thus, a custom alleged for the lord of a manor to grant leases of the waste lands without restriction has been held unreasonable, because its effect would be to enable him to destroy the right of common thereon altogether (e). Further, it must be shown that the usage has been certain; for a custom depending on any uncertainty, such as the will of a third person, would not be allowed (f). It is no objection to a custom that it is against the common law, for it is indeed of the very essence of a custom that it should vary from the common law (g). But no usage can be established by way of custom which within time of memory was allowed by the common law but was subsequently disallowed by statute (h). With regard to manorial customs, it is a well-established rule that the evidence of usage in one manor is no proof of the custom in another, because as each manor may have special customs for itself, it would put an end to special customs if evidence of custom in neighbouring manors were admitted in proof (i). But to this general rule there are exceptions. Thus, if it be first proved that the manors are closely connected with each other, and that the customs in the two are identical, evidence as to the custom in one will be admissible as evidence regarding the custom in the other. But geographical proximity is not sufficient of itself to admit such evidence, nor even the fact that one manor was a subinfeudation of the other, unless it can be shown that they were separated after the time of legal memory, for if the separation were before the time of legal memory, each manor might have different immemorial (d) Per Lord Cranworth, in Salisbury (Marquis of) v. Gladstone, 9 H. L. Cas. 692, 701. (e) Badger v. Ford, 3 B. & Ald. 153. (f) Fitzh. Abr. tit. Barre, pl. 277; Rowles v. Mason, 2 Brownl. 85, 86; (g) Horton v. Beckman, 6 T. R. 760, 764. (h) Ante, p. 19. (i) Anglesey (Marquis of) v. Hatherton (Lord), 10 M. & W. 218. customs (k). Also, if there be a doubt as to a particular incident of the general tenure which is proved to be common to two manors, evidence as to the custom regarding the tenure in one manor may be given to show what the custom of the other is (7). Evidence as to the custom of one manor in the Border districts, where tenant-right prevails, has been admitted to prove the custom of another manor in the same district as to that tenure, and similarly with manors in the mining-districts of Derbyshire and Cornwall and in the fen-districts of the eastern counties (m). When a copyholder claims a right of common by virtue Proof of right of a custom prevailing within the manor, he will establish of common. his right by evidence of the same nature as is required for the proof of any other manorial custom; but he may claim the right as appurtenant to his tenement, and may establish his claim by proof of the enjoyment of the right for the periods limited by the Prescription Act, 1832 (n). In such a case it is only necessary for him to show that he has actually enjoyed the benefit which he claimed for the requisite period as of right and not by permission, and that the right claimed is one which could have a legal origin by custom or grant (o). But if the claim is made under the provisions of the Prescription Act, evidence of the enjoyment of the right for twenty-eight years immediately preceding the action in which it is disputed will not satisfy the statutory requirements as to proof of enjoyment for thirty years, if it appears that there was an interruption of the enjoyment prior to the user for twentyeight years, even although it is shown that the right had been exercised before the interruption (p). The inter (k) Ibid. (1) Rowe v. Brenton, 8 B. & C. 737, 762. (m) Somerset (Duke of) v. France, 1 Stra. 654; Lowther v. Raw, 2 Bro. P. C. 451; Roe d. Beebee v. Parker, 5 T. R. 26, 31; Ely (Dean and Ch. of) v. Warren, 2 Atk. 189; Taylor, (n) 2 & 3 Will. IV. c. 71. (0) De la Warr (Earl) v. Miles, 17 Ch. Div. 535. (p) Bailey v. Appleyard, 8 A. & E. 161. Nature of copyhold estates. Amount of fine. ruption, however, must be an adverse obstruction and not a mere discontinuance of user by the claimant himself, and accordingly a verdict that there had been a continued enjoyment of the right for thirty years was held to be justified, although it appeared that the commoner had not used the common during two years of the thirty through not having any commonable cattle at the time, the right having been exercised both before and after the period of cessation (q). There is no objection to a copyholder basing his claim to a right of common either on a general custom prevailing within the manor or in the alternative on actual enjoyment of the right as appurtenant to his tenement for the prescriptive period (r). There will not in general be much difficulty in ascertaining the nature of the estates which the copyholders of a manor may by the custom possess in their respective tenements. It will be remembered that the power to grant the greater estate implies a power to grant the less (s). As to copyholds for lives and years, it has been mentioned above that the proper evidence to prove a right of renewal is to show that the fine is certain by entries in the courtrolls (t). If a fixed amount has been paid as a fine for a long period, and it appears by the roll to have formerly been uncertain, this will not be deemed a fine certain; but a few instances either way might not be conclusive as to the certainty of a fine, if they could be attributed to the carelessness of a steward (u). If a fine certain has been demanded, it is not evidence of uncertainty that the tenant has paid less, because the lord is at liberty to compound his claim (x). The Court will presume that a fine is uncertain until the contrary is proved from the rolls (y). With respect to copyholds for lives, it should also be (2) Carr v. Foster, 3 Q. B. 581. (r) De la Warr (Earl) v. Miles, 17 Ch. Div. 535. (8) Ante, p. 25. (t) Wharton v. King, Anst. 659; ante, p. 43. (u) Gerard's (Lord) Case, Godb. 265. (x) Allen v. Abraham, 2 Buls. 32. (y) Trotter v. Blake, 2 Mod. 229, 231. |