Odger's English Common Law

84 CUSTOMS.
he can prescribe by custom, but only through his lord. 1 Neither
a tenant for years nor a copyholder has any freehold, which
can become a dominant tenement. 2 Yet the right undoubtedly
existed, and had existed' for a very long period ; hence our
Courts were anxious to find for it a legal origin, if that were
possible. The only way of doing this was to declare that
these informal profits d prendre were immemorial local
customs.
Manorial rights, then, differ from ordinary profits d prendre
in that the latter cannot be claimed under a local custom.*
A vague, shifting body of persons, such as the inhabitants
of a parish, vill or township, cannot acquire a right of profit
a prendre either by grant, prescription or custom. On this
ground customs for " poor householders " to carry away
rotten branches, 4 or for " inhabitants " to cut underwood, 5 or
to fish in a river, 6 or to take stones from a close to repair the
highway, 7 have been held to be bad. But this rule does not
apply to manors. " Custom is the very life of a manor."
Copyholders can claim rights of common in the waste of
the manor against the lord by custom, though such claims
are really claims in favour of persons and not in favour of a
locality. This distinction is at least as old as the reign of
Queen Elizabeth. "In the common law a prescription, which is
personal, is for the most part applyed to persons, being made
in the name of a certain person and of his ancestors, or those
whose estate he hath ;
or in bodies politique or corporate and
their predecessors, . . . and a custome, which is local, is
alledged in no person, but layd within some mannor or other
place." 8
1 See Scriven on Copyholds, 4th ed., p. 51 6, cited with approval by Scrutton, L. J. , in
Berry v. Sanders, [1919] 1 K. B. at p. 2.37.
2 But a copyholder can claim by prescription rights over land outside a manor
in respect of his copyhold tenement within the manor. Such rights will enure
for the benefit of the lord, should the copyhold interest determine [Gateward's Case
(1607), 6 Kep. 60 b).
8 See Mills v. Mayor of Colchester (1867), L. E. 2 C. P., at p. 484.
4
6
Selby v. Robinson (1788), 2 T. R. 768.
Lord Rivers v. Adams (1878), 3 Ex. D. 361 ; Chilton v. Corporation of London
(1878), 7 Oh. D. 735.
6 Goodman v. Saltash (1882), 7 App. Gas. 633 ; Tilbury v. Silva (1890), 45
7 Constable v. Nicholson (1863), 14 C. B. N. S. 230.
8 Co. Litt. 113 b.
.