CH. 26. Art. 3. 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. 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 unreasonable, and every unreasonable custom is void. Prescription cannot be by one who hath an estate for years. Mod. 47, 3. So if a town or city, time out of mind, has maintained 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. But this 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 1 Bac. Abr. 675.-2 Lev. 96, 97, Predeaux v. 268. the river. 1 Com. D. 4. So a custom, that one may build on a new foundation 292.-9 Co. 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 v. Robinson. 2 W. Bl. 926, Bean v. Bloom, at large, post. Cro. El. 362, Dale. 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 necessary fuel to be used in their houses in A. 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 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. 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. CH. 26. 2 Ld. Raym. 7. A custom, that a man who signs a note, promising to pay money to another or his order, shall be obliged 1 Salk. 129.-to pay it, is a void custom. A natural person cannot pre-29, Potter v. scribe, except in right of a permanent estate; inhabitants, as Pearson.such, cannot purchase or have a right in another's soil by cus- 1 Ld. Raym. tom, but for a special reason. ART. 4. Remedies on customs. 485, Wickly v. Wildman. 1 T. R. 616, Baker 95, 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. 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. Eaton. Dougl. 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 Eldenbe 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. $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. 1 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 Knight. 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. Sten nett, 4. In this case it was decided, that the public has a right 8 7. 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 olaim the right, time out of mind. Сн. 25. Cro. El. 664, 2 W. Bl. 923. 3 Wils. 456, was case 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 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, "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 owners and masters of vessels may by custom dig ballast &c. This objection was overruled; and 2 W. Bl. 928 the court said, the privilege claimed is by custom, not prescription. "The same rights may be claimed either way; one is local, the other personal; and the difference lies in the mode of claiming suited to the difference of the claimants. Where the claimant has a weak and temporary estate, he cannot claim in his own right, but must have recourse either to the place and allege a custom there, or if he prescribe in que estate it must be under cover of the tenant in fee." 'So occupiers of houses may set up a custom to cut turves," though "inhabitants cannot." 66 CH. 26. Art. 4. If one allege a custom in a town, it is sufficient to say an 10 Co. 59.ancient ville. This is consistent with a usage time out of 3 Mod. 50. mind. So what is tantamount is sufficient, Com. D. Pl. C. 38. 84.-2 Lev. 253. 1 Lev. 176. Where common is claimed by a corporation it is as well to 1 Saund. 339. plead, that every burgess shall have common, as to plead that 6 Com. D. the corporation shall have it for themselves and every burgess; and the principle will hold in regard to any local custom where the members of a corporation claim a benefit in its right. In this case in trespass quare clausum fregit, the deft. 2 H. Bl. 393, alleged a custom ancient and laudable, used and approved of 399, Fitch v. in the parish of for all the inhabitants for the time being Rawlings. of said parish to have &c., so stated the custom. Then averred, that at the several times when &c. he was an inhabitant of said parish, and at those times he entered the locus in quo, and played at cricket &c., and held good. The deft. alleged a local custom for the inhabitants of a parish to do so and so, that he was one of them, and stated his acts to be according to and within the custom. This seems to be the true way of pleading. Plt. traversed the custom. 5 Com. D. Pl. C. 38.- 7. If one claim by custom or prescription, he must prescribe, and the plt. in his declaration must shew a good custom, as in case for not keeping a bull in a parish, he must shew a custom or prescription to keep one; so a loss for want of one Basset. must be alleged. Waples v. § 8. It is a general rule, that whenever the party avows and 1 Salk. 175, justifies a distress for a thing against common right, a custom must be alleged to distrain in such case. Fletcher V. above. § 9. But it is enough the party avowing be bound to per- Venhistone v. form what is the consideration for the duty he claims; as if Elden, a borough be bound to repair a port, and is entitled to toll in a suit or distress for the toll, it need not be alleged the port is in repair; for it is sufficient the borough is bound to repair; for being bound by the custom to repair is the consideration. Hawkins v. 2. The master of the vessel as to port duties is the exporter. 2 Wils. 175, Whoever claims an easement must plead it specially, as he Wallis claims a right in another's soil. Сн. 26. Common- 1795. 10 Mass. R. Dorr. ART. 5. Cases in the United States. In this case there had been a custom, time whereof &c. in the town of Ipswich, for all the inhabitants of that town to water their cattle, teams, &c. at a certain watering place in Ipswich river, which there run along side of the highway, and the deft. erected a building that covered a part of this watering place; and he in one count in the indictment was indicted for a nusance to this watering place of all the inhabitants of said town, and held good; for they may have, time out of mind, such an easement; and if obstructed, the obstruction may be considered as a nusance, and indicted accordingly, and the inhabitants shall not be confined to their civil actions. Customs and usages at banks, see Jones v. Fales, and the Lincoln and Kennebeck Bank v. Page, Ch. 29, a. 10. § 2. No class of citizens can establish a custom contrary to 26, Homer v. law: though this custom may be useful to explain the intentions of the parties to contracts. As where an insurance was made " a cargo from Boston to Archangel and back to Boston." No property was returned in the ship, in which case it was proved to be the universal custom in Boston where this insurance was effected, to return a portion of the premium It was known the decisions of the court had been otherwise. Held, first, on the point the law is well settled and generally understood: 2. "Evidence of custom and usage is useful in many cases to explain the intent of parties to a contract. But the usage of no class of citizens can be sustained in opposition to the principles of law." Judgment for the plt. for the whole premium. 2 Johns. R. 357, Cortely. ou v. Van Brundt. 11 Mass. R. 533, Cook v. Stearns. 3. Held, that prescription does not give the right of erecting a building on the land of another person; for title to lands must be by matter of record &c. A usage to erect huts on the shore to carry on a fishery must be pleaded or be in the notice. § 4. A right to enter on another's land to repair a dam &c. necessary to work a mill can exist but by grant or prescriptive right, though the dam and embankment were originally erected with the consent of the owner of the soil. The deft's. claim was stated in a special plea to which the plt. demurred for cause; 1. no legal conveyance pleaded &c.; 2. no prescriptive right shewn, nor is the mill described as ancient. But held, the deft. claimed a permanent interest in the plt's. land to keep up an embankment there, which cannot by our statute of 1783, Ch. 37, pass without deed or writing, and if intended to continue seven years, it must be by deed acknowledged and recorded. A license to do an act on another's land, as to hunt or cut a tree, may be by parol, where it passes no estate |