Odger's English Common Law

CUSTOMS OF A MANOR. 85
A manorial custom must be definite and certain. It must
also be reasonable, or rather, must not be unreasonable. " A
custom may be good though the particular reason of it cannot
be assigned, for it sufficeth if no good legal reason can be
assigned against it." 1
" Thus, a custom that no man shall put his beast into the common till
the 3rd of October would be good, and yet it would be hard to show the
reason why that day in particular is fixed upon rather than the day before
or after. But a custom that no cattle shall be put in till the lord of the
manor has first put in his, is unreasonable and therefore bad : for,
peradventure, the lord will never put in his, and then the tenants will lose
all their profits." x
In The Marquis of Salisbury v. Gladstone, 2 ' a
custom was held not
unreasonable for the copyholders of inheritance in a manor without licence
from the lord to dig and get clay without limit in and from their copyhold
tenements for the purpose of making bricks to be sold off the manor.
It was laid down in James v. Tutnei/, 3 that " a custom in a manor to make
by-laws for the regulation of a common or great waste, parcel of the manor,
is -good." But a by-law to exclude a commoner from the common would
be bad, for it wholly deprives him of his right, instead of merely regulating
his exercise of it. 4
A custom for freeholders and copyholders to get from a quarry upon the
wastes of the manor as much stone as they require to use on their
respective tenements in the said manor, but not elsewhere, is good. " The
freeholders of a manor may properly claim by prescription a right to cut
turf or get gravel out of the lord's waste, and when the freeholders have,
in fact, exercised such a right for many years the Court will try to find a
legal origin therefor." 6
In Broadbmt v. Wilkes, 6 we have an instance of a custom being held
void on the ground that it was both unreasonable and uncertain. There
the custom claimed was that, when and as often as the lord of the manor
or his tenants of the collieries or coal mines sank pits in certain freehold
lands within the said manor, for the working of the said pits and to get
coals thereout, the lord and his tenants might cast the earth, stones, &c,
coming therefrom in heaps "on the land near to such pits," there to remain
and continue at " his and their will and pleasure." In giving judgment
"VVilles, C. J., remarked, " The objection that this custom is only beneficial
to the lord, and greatly prejudicial to the tenants, is, we think, of no
1
1 Bla. Com. 77.
2 (1860), 6 H. & N. 123 ; 9 H. L. Cas. 292 ; followed in Blewett v. Jenkins
(1862), 12 C. B. N. S. 16, 30 ; and see Duke of Buocleueh v. Wakefield (1869),
L. E. 4 H. L. 377, 406.
3 (1639), Cro. Jao. 497.
1 Be Morgan v. Metropolitan Board of Works (1880), 5 Q. B. D. 155, 158.
6 Per Joyce, J., in Heath v. Veane, [1905] 2 Ch. at p. 93 ; and see Coote v.
Ford (1900), 83 L. T. 482.
• (1742), Willes, 360 ; S. C. (in Error), 1 Wils. 63 ; with which compare
Rogers v. Taylor (1857), 1 H. & N. 706 ; Carlyon v. Lorering, ib., 784.