Odger's English Common Law

CUSTOMARY RIGHTS; THE PLAINTIFF'S CASE. 585
at the common law by custom, prescription or grant, to any
easement." But it has been held that these words do not
apply to a claim of the kind we are discussing, because it is
not strictly a "claim to an easement." 1 Hence a right
claimed under a custom (not being a custom of a manor) in
favour of an indefinite body of persons can only be established
by prescription at common law, and is therefore liable to be
defeated by proof of a commencement within the period of
legal memory.
" A defendant may no doubt defeat a custom by showing that it could
not have existed in the time of Eichard I., but he must demonstrate its
impossibility, and the onus is on him (o do so if the existence of the
custom has 'been proved for a long period ;
this was done, for instance, in
Simpson v. Wells, 2 where the claim of a custom to set up stalls at the
Statute Sessions for the hiring of servants was defeated by showing that
such sessions were introduced by the Statutes of Labourers, the first of
which was in the reign of Edward III. . . . Not only ought the Court to
be slow to draw an inference of fact which would defeat a right that has
been exercised during so long a period as the present unless such inference
is irresistible, but it ought to presume everything that is reasonably possible
to presume in favour of such a right." 3
In the case of an ordinary local custom the right must be
laid in the inhabitants : in the case of a manorial custom, in
the freeholders or copyholders of the manor, or in both—it
would be wrong to lay it in the public generally. 4 The
plaintiff in an action brought to establish a customary right
often fails by proving too much-; the witnesses called in
support of the right frequently take pleasure in asserting,
contrary to the fact, that any one who liked could exercise
the right in question, and that persons from other localities
frequently did so.
Thus, in Fitch v. Raiding, 5 though the first plea which claimed a custom
for " all the inhabitants of a parish to play at all kinds of lawful games,
i See Moumey v. Ismay (1865), 3 H. & C. 486 ; and Mercer v. Denne, [1904]
2 Ch. at pp. 539, 554.
2 (1872), L. R. 7 Q. B. 214. A different rule prevails in the case of such an
immemoria'l custom ate a fair : see the judgment of Blackburn, J., ib., at pp. 216,
217 ; and Elwood v. Bullock (1844), 6 Q. B. 383.
» Per Farwell, J., in Mercer v. Denne, [1904] 2 Ch. at pp. 555, 556 ; and see
Welcome v. Upton (1810), 6 M. A: W. 536 ; Hulbert v. Vale, [1909] 2 Ch. 570.
l Heath v. Deane, [1905] 2 Ch. 86 ; Coote v. Ford (1900),.83 L. T. 482.
s (1795), 2 H. Bl. 393.