498 C U S 
that no min fhall put his hearts-into the common till the 
3d of October, would be good; and yet it would be hard 
to fliow the reafon why that day in particular is fixed 
upon, rather than the day before or after-. But a cuf- 
tom, that no cattle (hall be put in till the lord of the 
manor has fir'ft p t in his, is unreafonable, and therefore 
bad: for peradventure the lord will ne.ver put in his ; 
and then the tenants will lofe all their profits. 5. Cuf- 
toms ought to be certain. A cuftom, that lands fhall 
defcend to the moft worthy of the owner’s blood, is void : 
for ltow fhall this worth be determined? But a cuftom 
to defcend to the next male of the blood, exclulive of 
females, is certain, and therefore good. 1 Ro. Air. 365; 
A cuftom to pay two-pence an acre in lieu of tithes, is 
good ; but to pay ibmetitnes two-pence; and fometimes 
three-pence, as the occupier of the land pleafes, is bad 
for its uncertainty. Yet a cuftom to pay a year’s im¬ 
proved value for a fine on a copyhold eftate, is good ,- 
though the value is a thing uncertain ; for the value may 
be afcsrtained at any time ; and the maxim of law is, 
■id cerium eft, qued errtum reddipottjl. A cuftom that poor 
houfe-keepers- (hall carry away rotten wood in a chafe 
is-bad'; being too vague and uncertain. 2 Term Rep. 758-. 
6. Cnftoms, though eftablilhed by conlent, muft be, when 
effabliffied, Gompulfory ; and not left to the-option of 
every man, whether he will ufe them or no. Therefore 
a cuftom that all the inhabitants.- Audi be rated toward 
the maintenance of a bridge, will be good; but a cul- 
tom, that every man is to contribute thereto at his own 
pleafure is idle and abfurd; and indeed no cuftom at all. 
I.aftly, cnftoms mtift be'confident with each other: one 
cuftom cannot be fet up in oppofition to another. For 
■if both are really cnftoms,. then both are of equal anti¬ 
quity,.and both eftablilhed by mutual confent: which to 
fay of contradictory cnftoms is abfurd. Therefore, it one 
man preferibes that by cuftom he has a right to have win¬ 
dows looking into another’s garden, the othcrcannct claim 
u right by cuftom to flop up or obltruCt thofe windows: 
for thefe two contradictory cnftoms cannot both be good} 
nor both ftand together, lie ought rather to deny the 
exiftence of the former cuftom. 9 Rep. Doug. 190. 
As to the allowance of fpecial cnftoms. Cnftoms -in 
derogation of the common law mu ft be conftrued ftritlly. 
This rule is founded upon the confideration that a variety 
of cnftoms in different places upon the fame fubjeCt is a 
general inconvenience : the courts therefore will not ad¬ 
mit fuch cuftoms but upon the cleared- proofs. 1 Term 
Rep. Thus by the cuffom of gavelkind, an infant 
of fifteen years may by one fpecies of conveyance (called 
a deed of feoffment) convey away his lands in fee-fimple; 
Yet this cuftom does not empower him to ufe any other 
conveyance, or even to leafe them for feven years, for 
the cuftom mud be ftriCtly purfued. And moreover; 
all fpecial cnftoms mu ft yield to the king’s prerogative. 
Therefore, if the king purchafes land of the nature of 
gavelkind, where all the fans inherit equally ; yet on the 
king’s demife, his eldeft fon lhall fucceed to tliofe lands 
alone. Co. Lit. 15. 
A cuftom contrary to the public good, or injurious to 
a multitude, ar.d beneficial only to fame particular per- 
fons, is repugnant to the law of reafon, andxonfequently 
void. 2.Danv. 424. Cuftoms ought to be beneficial to 
all, but may be good where againlt the intereft of a par¬ 
ticular perfon,. if for the public good. Dyer, 60. A cuf- 
tem is not unreafonable for being injurious to private 
perfons or interefts, fo as it tends to.the. general advan¬ 
tage of the people. 3 Salk. 112. A cuftom may be good 
in fome cafes where a prefeription is not: but cuftoms 
that are good for the fubftance and matter of them, may 
yet be bad for the manner; if they are uncertain, or 
mixed with any other cuftom that is unreafonable, &c. 
2 Buljl. 166. 
A cuftom. extends over fome place or vill: a preferip¬ 
tion extends only to particular perfons. Hardw. 293. A 
prefeription mult always be had by way of qus e/late . 
T O Ml 
Cuftom that every one who pafleth over fuch a bridge, 
within the lord’s manor, and which the lord doth repair, 
fnall pay him.one penny, is a good cuftom ; but if it be 
to pay the-ibrd twelve-pence, it will be naught, for it is 
unreafonable. 1 Bit If '. 203. 
A cuftom that a lord fhall have within his manor libe- 
ramfaldcrn, or free-fold, throughout the village ; and that 
no other firall have it but by agreement with him, and if 
any take it, the lord may abate tire fame ; this hath been 
held a good cuftom. 1 Rol. 560. Cuftom for inhabitants, 
as fuch, to have common, adjudged void. Gatewood’s 
cafe. 6 Co. 66. A cuftom, that tenants of a manor firall 
grind all tire corn they fpend in their own houfes, in the 
lord’s mill, &c. is good : but a cuftom that every inha¬ 
bitant cf a houfe held of the lord, fhall grind tire com 
that he fpends, or firall fell, at his mill, is void. Moor, 
ca. 1217. Hoi. 149. Cuftom to have a common bake- 
houfe in a manor or parifh, for all the tenants or inhabi¬ 
tants, is a good cuftom. 2 Buljl. 198. 
Cuftom is and muff always be alleged to be in many 
perfons; and fo it may, be claimed by copyholders, or 
the-inhabitants of a place, and when it is claimed, it mu ft 
be as within fuch a county, hundred, city, borough, ma¬ 
nor, pari fir, hamlet, See. Co. Lit. no. A-good cuftom or 
prefeription hath the force of a grant; as where one and 
his anceftors have had a rent time cut of mind, and ufed 
to diftrain. But a cuftom that begins by extortion cf 
lords of manors, is judged wanting a lawful commence¬ 
ment, and therefore void: and where cuftom is among!! 
many, and they are all dead but one, the cuftom is gone. 
Piowd. 322. Cuftoms for an eldeft daughter to inherit, 
or a youngeft fon, may be good: for thefe, though con¬ 
trary to a particular rule of law, may-have a reafonable 
beginning. Nelf. Air. 579. And by cuftom a woman may 
be endowed of a moiety of the ■ hufband’s lands; &c. 
AIfo by cuftom, infants may bind- themfelves-apprentices. 
2 Danv. Air. 438. Regularly a man cannot allege a cuf¬ 
tom againft a ftatute, becaufe that is the higheft matter 
of record in law : but a cuftom mayffie alleged againft a 
nagative ftatute, which is made-in affirmance of a com¬ 
mon law. 1 Inf. 115. Acts of parliament do not always 
take away the force of cuftoms. 2 Danv. Air. 436. A 
cuftom is to be pofitively alleged, by uf'age in fa ft. 
L.utio. 1319. 
General-cu-ftoms which arc ufed throughout England, 
and are the common law, are to be determined by the 
judges : but particular cuftoms, fuch-as are ufed in fome 
certain town, borough, city, Sec. fttall be determined by 
a jury. Coifuetudo pro lege fervatur, Sec. faith Brafton, 
lib. iii. c. 3. And cuftom is f'aid to be altera lex: but the 
judges of king’s-bench or common-pleas can over-rule a 
cuftom though it be one of the cuftoms of London, if it 
be againft-natural reafon. 1 -Med. 212. 
The law takes particular notice of the cuftom of gavel¬ 
kind and borough Engliftt ; (Co. Lit. 175.) and there is 
no occafion to prove that fuch cuftoms actually exift, but 
only that the lands in queftion are fubjeft thereto. All 
other private-cuftoms mud be particularly pleaded; and 
as well the exiftence of the cuftom mull be ftiewn, as that 
the thing in difpute is within the cuftom alleged. The. 
trial in both cafes is by a jury, and not by the judges; 
except the fame particular- cullom has been before tried, 
determined, and recorded, in the fame court. 
CUSTOM of LONDON. 
This cuftom differs from all others in point of trial ; 
for, if the exiftence of the cuftom be brought in querticn, 
it fhall not be tried by a jury, but by certificate of the 
lord-mayor and aldermen, by the mouth of the recorder. 
Cro. Car. 516. Unlefs it be fuch a cuftom as the corpo¬ 
ration itfelf is interefted in, as a right of taking toll, Sec. 
for then the law permits them not to certify in their own 
behalf. Hob. 85. And when a cuftom has once been certi¬ 
fied by the recorder, the judges will take notice of it, and. 
will not fuffer it,to be.certified a fecond time. Dougl. 363. 
T-hele. 
