conveyance prescription, not even in respect of ownership, and tenant, and à fortiori in respect of mere occupancy. Therefore claimable by where the occupier of a close alleged a prescription in only. the owner of the close and all those whose estate he had, and his and their tenants, the right to enter upon the land of another person adjoining such close, for cutting and carrying away and to cut and carry away and convert to his and their own use the trees and wood growing on the said land as to the said close appertaining, the right was held to be a right in gross, and a right to be exercised absolutely, but not on but wholly irrespective of such close, and therefore incapable of being made appurtenant to it, and of being claimed by prescription (c); although a claim of a profit as appurtenant to, and to be used on, the land of the claimant is valid (d), and may be so claimed. prescriptive A prescriptive right cannot be pleaded by way of, or Pleading and as, a customary one (e). Whether, in respect of the co-existence of same land, a prescription can coexist with a custom and customary for the same right is questionable (ƒ). (c) Co. Litt. 121b; Bailey v. Stephens, 12 C. B., N. S. 91. (d) Douglas v. Kendal, Cro. Jac. 256. (e) Baker v. Bearman, W. Jones, 367; Blewett v. Tregonning, 3 Ad. & E. 554. (f) Vide supra, p. 135. rights. CHAPTER III. CUSTOM AS DISTINGUISHED FROM PRESCRIPTION COM- SECTION I. The Nature and Requisites of Custom generally. Custom, what. CUSTOM, in intendment of law, is such usage as has obtained the force of law, and is, indeed, a binding law for such particular place, persons and things as it concerns; and such custom cannot be established by grant of the Crown (a), or by act of parliament, but is an unwritten law, and made by the people only of such place where the custom prevails. For where people find any act to be good and beneficial, and apt and agreeable to their nature and disposition, they use and practice it from time to time, and so, by frequent iteration and multiplication of that act, custom is made, and being used from time immemorial obtains the force of a law. And so the rule (b) is true that no law obliges a people, except it be made by the consent of the people. For consent may be expressed as well by deed as by word, and that which is expressed by deed is stronger than that which is expressed by word, and that which is expressed by several acts, and continual acts of the same kind, is custom. And so, briefly, custom is a reasonable act, iterated, multiplied and continued by people from time immemorial (c). (a) 49 Edw. 3, 3a. (c) The Tanistry case, Dav. v. Wood, 6 Q. B. 50, 64; Duke of Beaufort v. Smith, 4 Ex. 450; Bremner v. Hull, 12 Jur., N. S. 648. tricts. The usages in mineral districts, not alone Cornwall, Usages in but the King's Field in Derbyshire, Dean Forest, and mineral disothers, have their's; and they will be allowed, their reasonableness being tried by tests, not the same in fact, but in principle as are applicable to other local usages, by a reference to their history, origin, and the local peculiarities on which they are to operate (d). mences and to Custom does not commence by grant, and extends How it comto all interests and estates whatsoever (e); and every what it excustom, as distinguished from prescription commonly tends. so called, must rest on usage from time immemorial (ƒ), must be lawful in itself (g), need not be intended to have a lawful beginning (h), and inquiry into the origin of a custom is unnecessary, and, being reasonable and beneficial, will prevail against the common law (i). It is in effect the common law within that place to which it extends, though contrary to the general law of the realm (j). In some modern cases where a claim has been made by custom, the legal origin of the custom has been spoken of as an essential element of it, making no distinction between claims by custom, and those by prescription as distinguished from custom (k). This legality of the origin of a custom, however, is to be understood, not as to it being in conformity with the general law, but as to it being legal in its own nature. (d) See Rogers v. Brenton, 10 Q. B. 26, 63. (e) Per Coke, C. J., Rowles v. Mason, 2 Brownl. 192, 198. (f) Co. Litt. 110 b, 113 b; Dav. 32 a; Elwood v. Bullock, 6 Q. B. 383; Ib. 66; Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218; Shephard v. Payne, 12 C. B., N. S. 414; 16 Ib. 132, on error; Mounsey v. Ismay, 1 H. & C. 729; Duke of Portland v. Hill, 12 Jur., N. Š. 286; Bryant v. Foot, 7 B. & S. 725; affirm. on error, L. R., 3 L. Q. B. 497, 37 L. J., Q. B. 207. (h) Gateward's case, 6 Co. 59. (j) Lockwood v. Wood, 6 Q. B. 50, 64. (k) See Shephard v. Payne, 12 C. B., N. S. 414; 16 Ib. 132; Bryant v. Foot, 7 B. & S. 125; affirm. on error, L. R., 3 Q. B. 497; Bremner v. Hull, 12 Jur., N. S. 648. P Must be reasonable. When so. Meaning of being void when not so. Reasonable as between the lord of a Above all things, every custom must also be reasonable (1), as in the case of tin-bounding in Cornwall (m), which is a direct interference with the law of property, and if claimed on a mere annual renewal of the bounds without a bona fide working of them, renders the custom unreasonable. A custom is reasonable when it is not prejudicial to the commonwealth, nor to the present interest of any particular person, or even prejudicial to such interest, but for the benefit of the commonwealth in general (n); or even when it involves a partial and limited obstruction to a public right, both as to extent and duration, the public during such obstruction deriving a benefit which can be considered as equivalent (o). 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 indulgence, and not from any right conferred in ancient times on the party setting up the custom (p). If the custom be unreasonable the prevalence of the use is to be referred to the ignorance or carelessness of those whose property is affected by the exercise (q). There are, however, many rights well known in manors, and capable of being supported, which arise manor and the entirely out of, and are dependent upon, the peculiar copyholders. (1) Bell v. Wardell, Willes, 202; Broadbent v. Wilks, Ib. 360; Wilson v. Willes, 7 East, 121; Harbin v. Green, Hob. 189; Drake v. Wigelsworth, Willes, 657; Noble v. Durrell, 3 T. R. 271; Richardson v. Walker, 2 B. & B. 827; Hilton v. Earl Granville, supra; Blackett v. Bradley, supra; Rogers v. Brenton, 10 Q. B. 26; Wakefield v. The Duke of Buccleugh, 15 W. R. 783; The Marquis of Salis bury v. Gladstone, 6 Ex., N. S. 123; affirm. in D. P., 9 H. L. C. 692. (m) Rogers v. Brenton, supra. (n) Dav. 32 b. (o) Elwood v. Bullock, 6 Q. B. 383. (p) Per Lord Cranworth, C., Marquis of Salisbury v. Gladstone, 9 H. L. C. 692, 701. (4) Per Lord Wensleydale, S. C. 705. relation between the lord and the copyholder (r), and the meaning of the word "reasonable," when applied to a custom regulating that relation, is not easy to define. That relation must have had its origin in remote times 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 tenant and the lord, 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 (s). the tenants. But as between the lord of the manor on the one When unreahand and the copyholders, either individually or collec- sonable as to tively, on the other, a right claimed by the lord by a custom may be so prejudicial to the copyholders (t) as to be unreasonable; as if the custom may deprive the tenant of the whole benefit of the land, it cannot be presumed that he at first would come to such an arrangement (u). So a custom which goes in destruction of the thing in which the right is claimed is unreasonable; as a custom of a manor for the lord to grant from (r) Per Erle, C. J., Bailey v. Stephens, 12 C. B., N. S. 91, 109. (s) Per Lord Cranworth, Marquis of Salisbury v. Gladstone, 9 H. L. C. 692,701. (t) Broadbent V. Wilks, Willes, 360; Hilton v. Earl Granville, supra. (u) Broadbent V. Wilks, supra. |