Odger's English Common Law

80 CUSTOMS.
servants, of measuring, shovelling, unloading and delivering all oysters
brought in any boat or vessel for sale along the river Thames to any place
within the limits of the port of London, and of receiving a reasonable com-
pensation for so doing, and the jury found that 8s,. for every score for the
first hundred bushels and 4s. for every score of bushels of the remainder
of a cargo was a reasonable recompense to them for the labour of shovelling,
unloading and delivering out the oysters. 1
(5) A local custom ought to be certain. And therefore a
custom that lands shall descend to the most worthy of the
owner's blood is void; for how shall this worth be deter-
mined ? But a custom that lands shall descend to the next
male of the blood exclusive of females is certain, and there-
fore good. So a custom to pay twopence an acre in lieu of
tithes is good; but to pay sometimes twopence and some-
times threepence, as the occupier of the land pleases, is bad for
its uncertainty. 2 A custom, however, for the inhabitants of
a parish to enter upon plaintiff's enclosed field within the
parish and erect a maypole therein, and enjoy on the land
any lawful and innocent recreation at any time in the year,
has been held reasonable and sufficiently certain. 3
So a
custom to pay a reasonable sum for a certain privilege is not
void merely because the fee is not definitely fixed. 4
(6) A local custom, when thus established, becomes the
law of the particular place wherein it has been shown to obtain. 5
Hence a custom to be valid must always be compulsory, and
not left to the option of every man, whether he will use it or
no. Therefore a custom that all the inhabitants of a parti-
cular district shall be rated towards the maintenance of a bridge
but a custom that every man was to contri-
would be good ;
bute at his own pleasure would be absurd and, indeed, no
custom at all. For the same reason customs must be con-
sistent with each other. Two conflicting customs cannot
prevail in the same locality ; for, if both are really customs,
then both are of equal antiquity and equally compulsory, and
this is impossible where they are contradictory.
i Laybourn v. Crisp (1838), 4 M. & W. 320.
2 1 Bla. Com. 78 ; Blewett v. Tregonning (1835), 3 A. & E. 554.
3 Ball v. Nottingham (1876), 1 Ex. D. 1.
* Mills v. Mayor, $c, of Colchester (1867), L. E. 2 C. P. 476, 484.
5 Tyson v. Smith (1838), 9 A. & E. 406, 426.