a discharge or exemption of the claimant in suo solo (n), or may be not even a mere easement (o), but only an Excuse for a excuse for a trespass, as common causa vicinagii, or the trespass, mutual right of the owners of adjoining open lands for their respective cattle to stray into the lands of each other, and, whilst so straying, to feed thereon without such owners being liable in damages for the trespass (p). mandi. A modus decimandi may be claimed by custom dis- Modus decitinguished from prescription, as well as by prescription (q). And the custom is not annexed to the lands which it covers, but exists in a notion of law independent of the lands, by force of the custom prevailing in the district, and is as necessarily attached to the certainty of district, as prescription for a modus is to a certainty of the particular lands (r). A heriot may be claimed by custom in respect of Heriots. tenements within a manor, upon the death of every free tenant holding either for an estate in fee simple, or for a less estate (s). burial fees. Marriage fees (t) and burial fees (u), although not of Marriage and fixed amount before the time of legal memory, for usage may fix the amount, and id certum est quod certum reddi potest, yet being reasonable, may be so claimed (x). But the claimant must be liable to the obligation of performing the ceremony, and therefore he cannot claim them for the performance of it in any other church or (n) Foiston's case, supra ; Gateward's case, supra; Shelton v. Montague, Hob. 118. (0) 10 Q. B. 635. (p) Vide supra, p. 152; Jones v. Robin, 10 Q.B. 581; Pritchard v. Powell, Ib. 589; Clarke v. Tinkler, Ib. 604. (4) Vide supra; Shelton v. Montague, Hob. 118. (r) Bennett v. Read, 1 Anstr. 322, 330. (8) Damerell v. Protheroe, 10 Official fees of registrar. Common causa vicinagii by classes of persons. parish than his own, by another person, for that would be against reason (y). Fees attached to the office of registrar may be so claimed, and may be presumed to be immemorial fees, if that presumption be necessary to give them validity, unless the contrary be proved (z). And as a fee need not be of a fixed and ascertained, but may be of reasonable, amount, such fees, notwithstanding variations in them during the period they were proved to have been paid, were held sustainable in law as reasonable (a). But where a marriage fee was claimed by custom, and the payment of it was proved for nearly thirty years past, the claim was held invalid on the ground of being "rank," or so large that it could not possibly have existed at the commencement of the time of legal memory (b). Blackburn, J., however, differed from the rest of the court as to the applicability of the doctrine of rankness to such a fee (c). Common causa vicinagii, when not between two or more individual proprietors where lands are not subject to common rights, or where there are not commoners on either side, for then the claim is by prescription as distinguished from custom (d), but between classes of persons, as inhabitants of different districts, or the tenants of adjoining manors, is matter of immemorial custom as distinguished from prescription. For where the wastes of adjacent manors lie open together, the lords in respect of their ownership of the soil of the wastes, the copyholders in respect of their customary rights and the freeholders in respect of their prescriptive (y) Topsall v. Ferrers, Hob. 175; Richards v. Dovey, supra. (z) Shephard v. Payne, 12 C. B., N. S. 414; 16 Ib. 132, on error. (a) Ib. 12 C. B., N. S. 414. But see Bryant v. Foot, 7 B. & S. 725, 756. (b) Bryant v. Foot, supra. (c) See also S. C. on error, 37 L. J., Q. B. 217; L. R., 3 Q. B. 497; Lawrence v. Hitch, Ib. 529. (d) Vide supra. rights over the wastes, have some common interest in the stocking of those wastes; and it may well be that a general custom and usage for the convenience of all parties may have existed from time immemorial as to straying of cattle, which custom and usage would not have had its origin in any actual contracts, it not being at all probable that many persons with such different interests should have entered into actual contracts on the subject, but in a tacit acquiescence of all for their mutual benefit (e). And the common may be claimed in respect of a single copyhold, or by a single copyholder only, or by one copyholder in one waste of a manor and by another copyholder in another waste of it (f), but not perhaps in respect of one of several tenements in the manor (g). And this common does not begin only by the bare custom, but with it and the consideration that the other tenants shall have common in like manner in his land (h), or the obligation of one owner is the consideration for that of another (¿). sea. The liberty of fishing in a creek or arm of the sea, Liberty of or in a district of the sea, exclusive of such liberty in fishing in the the public in general, may be acquired by custom as well as by prescription (k). vionem. Although, as we have seen (7), land cannot be Land acquired claimed directly by prescription properly so called, it per allumay be claimed by custom as distinguished from prescription. There is a general custom by which lands, from which the sea is gradually and imperceptibly removed by the alluvion of soil, becomes the property (e) Jones v. Robin, 10 Q. B. 581. See also Pritchard v. Porcell, Ib. 589; Clarke v. Tinker, Ib. 604. (f) See Foiston's case, 4 Rep. 31 b. (g) Per Patteson, J., 10 Q. B. 602. (h) 6 Hil. T., 13 Hen. 7, 13, 3; 10 Q. B. 624. (i) 10 Q. B. 630. (k) Hale, De Jure Maris, pt. i. c. iv. See also Blundell v. Catterall, 5 B. & Ald. 268. (7) Ante, p. 203. Not derelict lands. Nor an interest claimed by a class of per of the person to whose land it is attached, although it has been the fundus maris, and as such the property of the king. Such a custom is established by satisfactory legal evidence (m). Derelict lands, however (n), with some few exceptions (o), cannot be claimed by custom. A thing which either cannot be claimed by prescription because a grant of it cannot be made (p), or is claimable by prescription only, but the claimants are incapable of supporting their right in that mode (q), may be claimed by custom. An interest in alieno solo (r), especially when claimed in alieno solo by a class of persons as inhabitants (s), or the copyholders of a manor for such an interest beyond the limits of the manor (t), unless perhaps where the custom gives to the owner of the soil for the use of it a certain profit (u), cannot be claimed by custom. sons. Common causa vici an interest. Common causa vicinagii (x) might seem at first sight nagii not such to be an interest in alieno solo, and therefore not claimable by custom. But, as just shown, is neither such an interest, nor even a mere easement, but is only an excuse for a trespass and is so claimable. (m) Hale, De Jure Maris, pt. i. (0) Hale, De Jure Maris, 31, (p) See Shephard v. Payne, 12 C. B., N. S. 414; 16 Ib. 132; Bryant v. Foot, 7 B. & S. 725, supra, p. 216. (q) Rogers v. Brenton, 10 Q. (r) Baker v. Brereman, Cro. 12 Jur., N. S. 932; Lloyd v. Jones, 6 C. B. 81; 16 L. T. R., N. S. 629; Att.-Gen. v. Matthias, 4 Jur., N. S. 628. (s) Bland v. Lipscomb, 4 E. & B. 713, n.; Constable v. Nicholson, 14 C. B., N. S. 230; 10 Q. B. 60; Race v. Ward, 4 E. & B. 702; Lloyd v. Jones, 12 Jur. 657; 2 Brownl. 178; Murphy v. Ryan, 16 W. R. 678; Lockwood v. Wood, 6 Q. B. 50; Padwick v. Knight, 7 Ex. 854. (t) Gateward's case, 6 Rep. 60. (u) See Tyson v. Smith, 9 Ad. & E. 406; Lockwood v. Wood, 6 Q. B. 50; Rogers v. Brenton, 10 Ib. 26. (a) Vide supra. As exceptions to the rule as to an interest in alieno Exceptions. solo may be mentioned the case of copyholders claiming rights of common against the lord in the wastes of the manor (y), or sole and several pasture excluding him (z), and the right of fishing in a creek or an arm of the sea, or in a district of the sea, exclusive of the general public (a). (y) See Gateward's case, 6 Rep. 60; Grimstead v. Marlowe, 4 T. R. 717; Rex v. Churchill, 4 B. & C. 755; 6 D. & R. 635, S. C. See also Sect. I. of this Chap. (a) Supra, p. 219. |