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1838.

SMITH

V. Tyson.

cause it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth; as the custom to turn the plough upon the headland of another, in favour of husbandry; or to dry nets on the land of another, in favour of fishing, and for the benefit of navigation.

But on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason, for it could not have had a reasonable commencement. As a custom set up in a manor, on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad, for it is injurious to the multitude, and beneficial only to the lord, (2 Hen. 4, 24). So a custom that the lord of the manor shall have 31. for every pound breach of any stranger (Com. Dig. Copyhold, (S 13),) or that the lord of the manor may detain a distress taken upon his demesnes, until fine be made for the damage at the lord's will (Litt. s. 212); in all these instances, and many other similar customs, which are to be found in the books, the customs themselves are held to be void, on the ground of their having had no reasonable commencement, but as being founded in wrong and usurpation, and not on the voluntary consent of the people to whom they relate. But the reasonableness of the custom, in the present case, is not impeached on any ground of this nature. The present custom is in fact in favour of the many; and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor. The grounds upon which this custom is contended to be void on the present occasion, appear to be reducible to three; first, that it is so general, that it ceases to be a custom or pleadable as such, but is part of the common law; secondly, that by reason of its generality and extent, it cannot be carried into execution, and cannot therefore be considered as a reasonable custom; and lastly, that the right claimed amounts to a profit à prendre out of land, and cannot therefore be claimed as a customary right.

1838.

SMITH

V. Tyson.

As to the first objection, admitting for the purpose of argument, that a custom, which would comprehend within it all the liege subjects of the crown, would be bad, on the ground of its amounting to the common law: we think the custom before us is not of that description. For in the present custom there are three restrictions, which necessarily limit its generality. The parties who claim the benefit of it must be victuallers; they must be victuallers coming to keep the fair, and they must come at the precise period of the year at which the fair is fixed. Now under the description of victuallers, mentioned in the custom, we cannot consider that very large body of persons to be comprehended who in ancient times appear to have been classed under that designation by the statutes referred to in the argument; but we think the plea must be taken to speak in the language of the time at which it is pleaded; and as the only term used is that of victualler, it must be understood those only are comprehended who are now so termed, that is, persons authorized by law to keep houses of entertainment for the public. This removes the case at once from the application of the case of Fitch v. Rawlings (a) where the custom comprehended all the liege subjects of the crown being in the parish at any time.

But it is said that the number of these victuallers may be so large, and the space occupied by each so great, as that the whole portion of the common set out for the fair may be taken by them in exclusion of the rest. If this argument were to prevail, it is manifest that it would be equally applicable with respect to every particular branch of traders who frequent the fair—the sellers of corn or of cattle, the persons who deposit their cloth, the dealers in earthenware, and the like, might, with equal shew of reason, be stated by possibility to become occupiers of the whole ground, to the exclusion of the rest. But it is obvious that this is not an argument against the custom being reasonable in its original commencement, or against the prescription

(a) 2 H. BI. 393.

1838.

SMITII

0. Tyson.

for the fair being a reasonable prescription, it is an objection only as to the mode of exercising the rights so claimed, whether under the custom or the prescription. An inconvenience of this description will provide its own remedy; if i occurs once, it will not be likely to occur again. It is in the highest degree improbable that it should ever occur at all. A little previous inquiry will at all times prevent its recurrence. And in Bennington v. Taylor (a), where it was objected that a prescription was uncertain and therefore void, which claimed toll for a stall, and the land“ propè et circa stallam, &c.” the objection was not allowed; for this, it was said, “shall be ascertained by the usage of the fair.” And these are precisely the points of consideration to which the judges must advert when called upon to determine whether the custom is void or not. It is not void as being against law; and if alleged to be void because inconvenient in a high degree in its enjoyment, and therefore unreasonable, they must look to the probabilities of the case, and be satisfied - that the inconvenience is real, general and extensive, before they hold a custom bad upon that ground, which a jury have found to exist and to have been acted upon from beyond the time of legal meinory.

As to the objection that this is a bad custom as against the owner of the soil, that all the authorities confine a claim under a custom to matters of easement only, whereas this is a matter of profit in alieno solo, inasmuch as the soil must be disturbed by the erection of the stall; admitting this to be the case, which is left extremely doubtful on the pleadings in this case, yet the distinction between this custom and others to which reference was inade is, that it gives a certain profit to the owner of the soil, for the use of the same; and whether that is a full compensation or not, is not the question. At the early time at which this custom originated it may have been a profit to the lord, and at all events it may have been an object to him with respect to the profits of his fair, to give encouragement to those who

(a) 2 Lutw. 1517.

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1858.

SMITII

Tyson.

would erect booths and stalls for the entertainment of strangers coming to the fair. It is clear that a prescription for a certain toll by way of stallage is good, notwithstanding toll and stallage are different things, as was held in the case of Bennington v. Taylor (a), above referred to, and if the lord of the fair can justify distraining for such toll under a prescription, there seems no reason why the person who uses the stall on payment of the tolls, and who cannot prescribe in a que estate, or in himself and his ancestors, being a stranger, should not justify under such a custom as the present.

The custom, in fact, comes at last to an agreement, which has been evidenced by such repeated acts of assent on both sides, from the earliest times, beginning before time of memory and continuing down to our own times, that it has become the law of the particular place.

We therefore think the custom set out on the pleadings is a good custom, and affirm the judgment of the Court of Queen's Bencb.

Judgment affirmed.

(a) 2 Lutw. 1517.

END OF THE SITTINGS IN BANC AFTER MICHAELMAS TERM.

313

HILARY TERM,

IN THE SECOND YEAR OF THE REIGN OF VICTORIA.

The Judges in Banc this Term were,
Lord DenMAN C.J. WILLIAMS J.
LITTLEDALE J.

COLERIDGE J.

In the Bail Court,

PATTESON J.

MEMORANDUM.

1839.

The Hon. Mr. Justice Park died in Michaelmas vacation (the 8th December). On the 9th January, 1839, the Right Hon Thomas Erskine, late Chief Justice of the Court of Bankruptcy, was called to the degree of the Coif, and gave rings with the motto “ Judicium Parium:" on the same day he was appointed one of the Judges of the Court of Common Pleas, where he took his seat on the first day of Hilary term,

REGULA GENERALIS.

Hilary Term, 1839. IT IS ORDERED, that the following Forms of Writs, framed by the Judges, pursuant to the statute 1 & 2 Victoria, c. 110, s. 20, be used from and after the first day of March next, with such alterations as the nature of the action, the description of the Court in which the action is depending, the character of the parties, or the circumstances of the case may render necessary, but that any variance, not being iu matter of substance, shall not affect the validity of the writs sued out.

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