Сн. 26. 4 T. R. 717, Grimstead v. Marlowe. 1 Saund. 339, Miller v. Spateman. This case at large, Ch. 173, a. 11. § 3. Second, he may claim an easement in the soil of another as a way &c., and what may be essential to repair it. But he cannot by custom claim an interest or profit to be taken or had in the land or soil of another. But a profit aprendre must be by prescription in the person, and not by custom in the land; and the law requires that every prescription have a lawful beginning, a custom not, but only a reasonable one, for a person rests his prescription on a supposed legal grant since lost, but a custom rests on the consent of the people of the place, for among inhabitants some may be only tenants at will, and some mere residents only, and the interest as common of pasture &c. cannot be released; for if one inhabitant of a house release and then move away, and one takes his place, he may claim &c. But a corporation, time out of mind, may prescribe for itself and all its members to have common, per Buller J.; 4 T. R. 719; and I Saund. 339, 343. According to this case no deft. can claim a profit aprendre in alieno solo by custom of the place. 4. This was trespass for breaking and entering the plt's. close &c. Plea, as to all except &c. not guilty, and issue. And as to the said trespass with two gueldings &c. actio non ; because the place where &c., and from time whereof &c. were parcel of a certain common field in Derby. That this was an antient borough, and that the deft. was one of its burgesses, and they from time whereof &c. to politic &c. by the name of 3 Burr. 1866. the name of Dougl. 119, Fenshaw. 1 Bac. Abr. 670. Carth. 357.- were a body and then incorporated by and prescribes in the said corporation for common in the place where &c., as one of the burgesses for all their commonable cattle. Plt. demurred. 5. Held, a corporation may prescribe for common in gross for cattle levant and couchant, within the town, but not for common in gross without number, that a corporation does not lose its franchises by a change of its name; but will retain under its new name the possessions it before had. And so by its new name is subject to old debts and demands. § 6. If a duty be payable on corn imported into a city, yet a custom to exempt citizens from paying it, being factors, is good, though the duty be to the city. This exemption to these free factors, or a return of the duty to them, may reasonably be to encourage them to import corn. 7. By the custom of a town an infant may bind himself an apprentice, or make a feoffment, at the age of fifteen years, as in gavelkind. 8. If a corporation be bound to maintain and repair a port, it is a good consideration for a customary duty on goods there, and the master may be chargeable and the vessel sails &c. distrained for it. Art. 2. 9. It is a good custom for all the inhabitants of Thiberton CH. 26. to cut rushes on Thiberton common. The plt. proved he was an inhabitant, and that there was a custom for every body inhabiting there to cut and take rushes in that place. But see 3 Wils 332, Bean v. Bloom, post, is contra, but occupiers may. 10. A custom for a particular person to have the sole use of a trade in a certain place may be good, if he have stock sufficient to serve the place. The same for a corporation, for all concerned may agree to this effect. Rackham v. 10 Mod. 131 Drake v. Green. It is a good custom, that a person and all those whose estate Willes 654, he has, have been seized of a mill, time out of mind, and Wiggles"that all the inhabitants within the parish ought to grind all worth. their corn which they expend in their messuages or tenements at the said mill." For this custom might have a reasonable beginning by agreement at the erection of the mill; but there must be a mutual consideration, and the owner must keep his Hob. 189, mill in repair. But otherwise, as to corn they sell. For it might Hasbin v. be a reasonable contract, originally for the mill owner to agree to keep a mill in order, in consideration they engaged to grind at it all the corn they used or spent in their families. And it was mutual and sufficiently certain for them to agree to do so 201.in consideration of his engagement so to keep a mill. But as to corn sold, the consderation is wholly uncertain. Dougl. 218. 11. So a custom is good for the tenant to have the going crop, Wigglesworth v. Dallison, 1 Phil. Evid. 485. v Johnson.§ 12. So a custom for all the inhabitants of a town to play 2 H. Bl. 394, at all lawful games in a close at all reasonable times of the Fitch v. Rawley. year, is good; and all times will be construed all reasonable times. But not for all persons for the time being in the town; not for all rural sports, as some may be improper, id. way Cort v. Birkbeck, Dougl. 16 East 78. Willes 205, 12 Mod. 296. So for surveyors duly chosen to destroy corrupt victuals 1 Mod. 202.-exposed to sale. So a custom to make a by-law to oblige a person to take an office under a penalty, is good. $ 13. Towing paths may be good by usage or custom, but not of common right. There were no towing paths at common law on the antient banks of antient navigable rivers; but all such paths have originated in customs in certain places. This matter was decided in the case of the river Ouge. 1 Burr. 292. -3 T. R. 255, Hall v. Herbert. 14. This country has been settled long enough to allow 6 Mass. R. of the time necessary to prove prescription. There is, there- 90, Rust v. fore, the same principle in regard to customs. Low & al. 1 Bac. Abr. 669.-Co. L. 4 Co. 69. § 15. All laws bind by the assent of the people. This may be expressed, as well by facts as by words or in writing, and 13, 110.where it is contrary to the general laws of the land, it prevails where it has obtained the force of law. "Consuitedo ex causa certa rationabili usitate privat communem legem." And yet it is laid down in many books, that a custom contrary to law 8 Co. 62.Lit. Inst. 37. CH. 26. Salk. 287, Watson v. Sparks. Rex v. Price. 3 T. R. 271, rell. is void, but on examining the cases generally it will be found that a custom to be bad and void must not only be against law, but also unreasonable. Therefore, customs in courts in delay of justice are void, not merely because they are contrary to the rules of law, but because also they are unreasonable and injurious to the public. And a right to glean after harvest is a good custom, but it must be exercised under proper circumstances and restrictions, 4 Burr. 1925. ART. 3. Bad customs-further cases. A custom that every Noble v. Du- pound of butter sold in a particular market-town &c. weight 18 ounces, is bad; for it is an attempt to lay aside the legal weights of the government. 2 Inst. 56.Rol. Abr. 564. -1 Bac. Abr. 674. 2. So it is a bad custom to oust a man of his inheritance, without action or answer in any town. So a custom is bad to try an issue in an inferior court by six jurors. This is unrea10 Mod. 133. sonable, and every unreasonable custom is void. Prescription cannot be by one who hath an estate for years. -3 Salk. 279. -1 Bac. Abr. Mod. 47, 3. So if a town or city, time out of mind, has maintained Haspart v. Wills.-Vent. a wharf on a river, for unlading goods brought up to the town 71.-Sid. 454. Or city, it is a bad custom to demand a certain sum of a vessel passing through the river by the wharf, and not unloading there, for this vessel has no benefit from the wharf. tax may be reasonable if the town or city be obliged to cleanse Warn-Salk. the river, or do any thing beneficial to the vessel in passing the river. 675-2 Lev. 96, 97, Predeaux v. 269. 1 Com D. 292.-9 Co. But this 4. So a custom, that one may build on a new foundation to obstruct antient lights is bad and void; for one custom is 58, case of Aldred. See as old as the other. For when a man has a lawful easement Nusance, An- or profit by prescription, time out of mind, another custom tient Lights, and Air. time out of mind cannot take it away; for one is as antient as 3 Cruise 535. the other. As if A have a way by prescription over B's land, B cannot prescribe to stop it. No prescription to a thing, the beginning whereof is proved by records, writings, or witnesses. -Co. Lit. 15. a. 2 T. R. 758, Silby r. Robinson. 2 W. BI 926, Bean v. Bloom, at So a custom for poor and indigent householders living in A, to cut and carry away the rotten boughs and branches in a chase in A is bad. For the description of persons entitled is too vague and uncertain, and a verdict found for a deft. under such a custom was held bad and set aside, and one entered for the plt. and nominal damages. The claim was for necesfuel to be used in their houses in A. sary 5. It is a bad custom for inhabitants to claim a right in alieno solo, as a right to cut and carry away rushes. (This is large, post. aprendre.) The same case, 3 Wils. 456, 461, more fully reported; but 3 Wils. 332, contra; so 3 Salk. 279. But Bean &c. is the last decision. Cro. El. 362, 6. A grant of common to inhabitants is too vague and is void. So it is too vague for an inhabitant to purchase to him and his successor; but an easement may be granted to inhabitants; as it is a good custom they have a way, &c. § 7. A custom, that a man who signs a note, promising to pay money to another or his order, shall be obliged to pay it, is a void custom. A natural person cannot prescribe, except in right of a permanent estate; inhabitants, as such, cannot purchase or have a right in another's soil by custom, but for a special reason. ART. 4. Remedies on customs. Baker let. 3 Burr. § 1. Wherever a custom is good, and monies thereby be- Seward v. come due to one as tolls, wharfage, fines, port duties, &c. he 2 Wils. 95, may recover them in an action of assumpsit, unless it be a part Mayor of Exof the custom that he apply some other remedy exclusively. eter v. WimSo whenever a custom is bad, and one receives money by 1402, Mayor pretence of it, he may be compelled to repay them in this of Yarmouth action of assumpsit for monies had and received. In most of v. EatonDougl. 722.-the cases a general indebitatis assumpsit lies. But it may be 3 Burr. 1717. a part of the custom, that the party entitled to the duty may Esp 8.distrain for it, and if it be a port duty, as 5s. a chaldron on all Salk. 248, coals exported, even the sails and anchors of the vessel may Elden be distrained for it. And this other remedy is often cumuta- Register 100. tive only, and does not generally take away the remedy by assumpsit. Venhistone v. Knight. 2. Customs which are consistent may be pleaded against 3 T. R. 264, each other. And the party pleading the general custom need per Buller J. i Wils. 253, not shew its modification, which is consistent with the right he Kenchin v." claims. As where a custom is pleaded to put swine on a common, the plt. may reply they must be rung, without traversing the custom set up in the plea, for these customs are consistent. So one custom may be to tow, and another to pay for it. case. 3. In this case the court resolved, that if one be bound to 10 Co 139, repair a wall against the sea, and he keeps it in good repair Kughtey's to such a height, and as sufficient as customary; and by a sudden flood or flux of fresh or salt water it be broken down &c., he is not liable; but it must be repaired by the commissioners of sewers at the expense of all benefited by it, according to their interests, for this sudden breaking down &c. is by the act of God, or inevitable accident, and not by any fault in the deft But otherwise, if there had been any fault in him, and if by his fault, each one injured may sue him. This action was case. Bott v. Stennett. § 4. In this case it was decided, that the public has a right 8 T. R. 606, to use cranes erected on public quays. And one in trespass justifying the use of a crane on a public wharf need only say, that it is "a public open and lawful wharf" and need not claim the right, time out of mind. CH. 25. Cro. El. 664, 2 W. Bl. 923. 3 Wils. 456, v. Bloom. The same was case for a tort against a wrong doer. 3 Wils. 426. 5. Chancery upon a bill will direct a trial at law of a custom or prescription to avoid a multiplicity of suits; and issue may be directed to try whether such customs as laid in a bill, or any or what custom, though the plt. does not prove the custom laid. 2 Com. D. 441; 1 Vern. 22, 266; Bunb. 43. In this case the court decided, that the inhabitants of Southwark had a watering place in alieno solo, and if disturbed each had his action. The remedy was different in Manning's case above. How "occupiers of lands may by custom claim a right in alieno solo," but inhabitants cannot; though before in Rackham v. Jesup it was held they might so claim. This last decision must prevail. 6. This was case for disturbing the plt. in his right of Beau or Bean common, and right to cut and take rushes upon the common for litter for his cattle by antient custom. The plt. declared, that July 1, 1772, and for two years past, he was and hitherto hath been, and still is lawfully possessed of, and is the occupier of, a messuage and ten acres of land with the appurtenances in the parish of Ludham; and all that time entitled to common of pasture on the waste in Ludham, containing about 500 acres, for all his commonable cattle levant and couchant upon his said messuage and land &c. every year, and all the year as appertaining to his said messuage &c. ; that time out of mind there had been an antient custom, "that every occupier of land and tenements in the said parish of Ludham, who is entitled to have such common of pasture" in said waste, 66 hath used and been accustomed to mow and cut down rushes growing and being in and upon said waste or common every year;" during the summer quarter &c., to place the same in heaps &c. on said waste &c., to dry &c., take away &c. " for litter for the cattle, so levant and couchant as aforesaid, of every such occupier of lands and tenements in the parish of Ludham aforesaid, who is entitled to have such common of pasture aforesaid." Yet the deft. knowing &c., contriving &c., cut and carried away ten acres of said rushes &c. whereby the plt. could not use his said common and said right of mowing &c. &c. in so ample a manner as he ought &c. Plea, not guilty, and verdict for the plts. Deft. moved in arrest of judgment; because "a custom to take a profit in the soil of another is bad;" cited Gateward's case. The plt. replied, that Gateward's case did "not prove that an occupier of land may not have common in the soil of another, and by custom have a right to cut down and take rushes for litter for his cattle levant and couchant on his land;" cited 3 Lev. 160, Taylor's case, in which it was decided freemen of Lynn being |