CHAPTER XXVI. Сн. 26. ASSUMPSIT. CUSTOMS AND PRESCRIPTIONS. ACTIONS of assumpsit in several cases, rest on the customs See Prescripof the country; as actions against and by carriers, inn-keep- tion. ers, farriers, factors, taylors, and other persons who are by law obliged to perform services for a reasonable hire or reward. These are, generally considered, under their several heads, when the principles and pleadings peculiar to each are brought together. See also, Flats, Mills, Tolls, &c. &c. There are also, in regard to customs, certain general principles, which may properly be here concisely examined; and actions of assumpsit, in some cases, founded on customs may be noticed in this chapter, which do not come under any of the particular heads mentioned. Custom and prescription are all one; Cro. El. 313: only difference, one is local, the other personal. Co L. 113. The true test of a commercial usage is its having existed a sufficient time to have become generally known, and to warrant a presumption that the contracts are made in reference to it. 1 Caine's R. 45. Smith v. Wright. ART. 1. General principles. As no action or plea can be supported, which rests on a bad custom, it is necessary in this place to enquire what is a good and what is a bad custom. Custom is unwritten law, and respects place, as prescrip- 1 Bac. 671. tion respects persons, and every custom is construed strictly. Several things are essential to make a custom good and 1 Bl. Com. 76, valid. 78.-Co. L. 110 1. A custom must have been time out of mind; for if 1 Bac. Abr. any one can shew when it began, it is not a good custom. 670. § 2. It must be continued without any interruption, or tem- Co. Lit. 113, porary ceasing of the right, otherwise, of possession or enjoy ment. § 3. It must have been peaceable, and acquiesced in, and not disputed at law or otherwise; for customs owe their origin to common consent. This cannot be intended in disputed cases. b. -11 Mod. § 4. It must have been reasonable, or rather not unreason- 6 Com. D. 77. able; but if one plead a custom, he is not bound to shew, it 161. had a reasonable commencement. 5. It ought to be certain, so that it may be known and understood, as to the persons claiming, the thing claimed, &c. Сн. 26. § 6. It ought to be compulsory, and not left to each one's option to use or obey it or not. 7. And customs must be consistent with each other. If 1 Ld. Raym. contradictory they destroy each other. It is not to be presumed a custom originated in an act of parliament. 485. 8 Salk. 112. § 8. The foundation of a custom is consent. As no law can oblige a people, without their consent given in some form or other; so, when they do consent, and use a certain rule as a law, such rule is a law, in many cases; but it may be void in some cases, as being repugnant to a more general law. But a 9. This consent to a rule or law is expressed in writing, or implied by actions. Where by actions, it is common law, or custom; custom, if confined to a particular place; common law, when universal. Actions repeated and continued by the same rule, is evidence of assent to it, by those who do those acts; but the original reason of the consent need not be 1 Mod. 161. shewn. Dougl. 131, in Cocksedge & al. post. The beginning of a custom must not appear to be unreasonable, "for no usage can be good which was not so ab initio.” custom is not bad because it is contrary to the common law; for many customs are so, as the custom in Kent of Gavelkind, so the custom of Borough English in some places. Nor is a custom bad because it is injurious to private persons or interests, if it be for the public good. Hence, custom to pull down houses in a great fire to prevent it spreading is good; so to turn a plough on the headland of another is a good custom, for this favours and promotes husbandry. Dougl. 203. 10. But a custom injurious to the public, or to many persons, and beneficial only to some individuals, is bad; as many persons owning most of a pasture shall not put in their cattle till some minor owner does; for such a custom must have arisen in tort or usurpation, and cannot have had a reasonable 2 Lutch.1317. commencement. The custom of a place cannot extend be-3 Salk. 113. yond that place. In all pleadings of a custom, it ought to be case of Gate- positive that within such a place there is such a custom; this is alleged in the land, but prescription in the person. Sid. 237. -6 Co. 60, ward. Cunningham 79, 80. 1 Bl. Com. 76. § 11. When foreign written laws, as the Pandects, Codes, Institutes, &c. are adopted and used by custom in the English courts, or in the United States, they are a part of the unwritten or customary law. They have force merely because adopted, and have been immemorially used. § 12. The custom of merchants is a part of the common law of the land, and the courts ex officio take notice of it accordingly. But this custom of merchants must be controlled by adjudged cases, 2 Burr. 1216, Edie v. E. I. Company. It arises from general established law, and not from special local usage; nor the opinion of merchants &c.; but may be proved by their understanding of it; 1 W. Bl. 417; 2 Burr. 1226; 6 East 202, Parr v. Anderson; 1 Cain. Smith & al. v. Wright; 2 John. R. 327. So other general customs the courts in like manner take notice of, and they need not be pleaded specially as English statutes, as common law adopted here being general they are properly common law, and not strictly custom, which is limited to some place, part of a state or nation, as is gavelkind. But particular customs must be specially pleaded, and the existence of them shewn, and also it must be stated and proved, that the thing in dispute is within them. And if the plt. declare on a particular custom, and the deft. confess it by his demurrer, the plt. shall have judgment, though there in fact be no such custom, for the parties agree it exists; and the court cannot take notice there is no such private or particular custom, but otherwise of a general cus tom. CH. 26. Art. 2. Blanford. So in stating an antient custom the exceptions to it must be Cowp. 62, stated; if not, the custom stated and the one proved will be Griffin v. different. If a bad custom be stated in the declaration, it is Rob. 89. not aided by assigning a breach in a good part. 13. Many customs may have had a reasonable commencement, and so be good in another country for reasons existing there, that cannot be applied in this country. Such as most of the customs in England founded in the feudal and church systems. 14. But in regard to some customs there, the reasons 2 Bl. Com. which made them good or bad in that country make them so 265. in this. Custom is local usage and not annexed to any person, and prescription is a mere personal usage annexed to some person or persons. 3 Salk. 278. 3 Cro. 664. 6 Co. 60, Gateward's -3 Lev. 160. case.-/ 3 Wils. 458. --Dougl. 725. ART. 2. Good customs, further cases. §1. As a custom to dig gravel in the adjacent land to repair a way is good, so to have a watering place in the adjacent land is good; and so to dig ballast, for these things are for the public good, and might well have a reasonable beginning founded in the consent of those concerned. So a custom to dry nets on another's land is good. And so a custom to cut rushes in the Lord's waste for occupying a house &c. and having common there, as against stranger. So a custom to distrain the parts or goods of a ship Bloom.for the port duties on the goods shipped on board is good; here the duties were for repairing the port. one -5 Co 84.2 W. Bl. 926, a Bean v. 12 Mod. 216. 3 Wils. 456.- Gateward's 2. In these customary claims and rights these distinctions 6 Co. 60, 61, are taken in Gateward's case, and generally admitted in subse- case.-Hob. quent cases: 1. That every inhabitant of a town may claim a 86. discharge by custom of his soil, as a modus to discharge him of tithes; but cannot by custom claim to charge the soil of another, or a right in his soil. CH. 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 1 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 - were a body politic &c. by the name of, and then incorporated by 3 Burr. 1866, the name of 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. Dougl. 119, Fenshaw. 1 Bac. Abr. 670. Carth. 357.- 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. 9. It is a good custom for all the inhabitants of Thiberton Cн. 26. to cut rushes on Thiberton common. The plt. proved he Art. 2.. 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. 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 Cort v. Birkat it all the corn they used or spent in their families. And it beck, Dougl. 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 16 East 78. corn sold, the consderation is wholly uncertain. Dougl. 218. Green. § 11. So a custom is good for the tenant to have the way Willes 205, Millechamp 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. 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. 1 Burr. 292. -3 T. R. 255, Hall v. Herbert. § 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. §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. 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 4 Co. 69.where it has obtained the force of law. "Consuitedo ex causa Lit. Inst. 37. certa rationabili usitate privat communem legem." And yet it is laid down in many books, that a custom contrary to law 8 Co. 62. |