Odger's English Common Law

GENERAL LOCAL CCTST0M3. 77
shall inherit his land in equal shares, and not the eldest son alone. Again,
there is a custom in certain ancient boroughs, and therefore called borough-
English, that the youngest son shall inherit the estate in preference to all
his elder brothers. 1
These customs are so well known that the Court will
take judicial notice of them ; it is only necessary to prove that the custom
is applicable to the lands in question. And in other boroughs there is a
custom that a widow shall be entitled for her dower to the rents and profits
of all her husband's lands during her lifetime, whereas at the common law
she is entitled for dower to only one third part of them.
Again, where a tenant for life is forbidden to commit waste, he may not
fell timber ; and by the word " timber " is meant, as a rule, oak, ash
and elm trees. In Buckinghamshire and other counties beech is also
timber by custom 2
; so in other places is willow. But there cannot be a
custom to prevent tenants for life from cutting down larch trees, as larch
trees were unknown in England before the reign of James I. 3 Agricultural
and trade customs may vary, and this is for the public good. But a custom
defining or restricting the rights of a limited owner of land must be
immemorial.
A local custom, therefore, so far as it extends, supersedes
the general law. 4
It derives its validity from long-continued
usage. From such usage, it was said, the consent of those
immediately affected by it might be implied. But as a
matter of fact such consent was never consciously asked or
given ; nor is proof of any such consent necessary to the
validity of the custom. The fact that the custom is incon-
sistent with the general law of the land will not render it bad
in law. But no local custom can prevail against an express
Act of Parliament. Every custom—in theory at all events
—must be anterior in date to any statute, and an express
subsequent statute will override any antecedent custom. 5
Thus all local customs with regard to wills and all customs, which declare
that women and children shall have rights of succession indefeasible by
will, have been abrogated by statute. 6 Again, a custom to weigh 18 ounces
to a pound is bad, for the statute 13 & 14 Car. II. c. 26 takes it for granted
that a pound shall consist of 16 ounces. 7
653.
i See Muggleton v. Barnett (1856), 1 H. & N. 282 ; 2H.&N.
2 Dashwood v. Magniac, [1891] 3 Ch. 306.
3 In re Harrison's Trusts (1884), 28 Ch. D. 220, 227 ; and see the dissenting
judgment of Kay, L. J., in Dashwood v. Magniac, [1891] 3 Ch. at p. 379.
* See the remarks of Best, C. J., in Lord Falmouth v. George (1828), 5 Bing.
at p. 293.
6 Mayor, #c, of New Windsor t. Taylor, [1899] A. C. 41 ; but see Lanchbury
v. Bode, [1898] 2 Ch. 120.
6 The Statute of Distributions (22 & 23 Car. 11., c. 10), s. 4 ; and 19 & 20 Vict. o. 94,
7 Noble v. Durrell (1789), 3 T. E. 271, 271. See further, as to a custom being
abrogated by statute, Truscott r. Merchant Taylors' Co. (1856), 11 Ex. 855.