owners and masters of vessels may by custom dig ballast &c. This objection was overruled; and 2 W. Bl. 928 the court said, the privilege claimed is by custom, not prescription. "The same rights may be claimed either way; one is local, the other personal; and the difference lies in the mode of claiming suited to the difference of the claimants. Where the claimant has a weak and temporary estate, he cannot claim in his own right, but must have recourse either to the place and allege a custom there, or if he prescribe in que estate it must be under cover of the tenant in fee." "So occupiers of houses may set up a custom to cut turves," though "inhabitants cannot.' Cн. 26. 1 Saund. 339. 6 Com. D. 84.-2 Lev. 253. If one allege a custom in a town, it is sufficient to say an 10 Co. 59.— ancient ville. This is consistent with a usage time out of 3 Mod. 50. mind. So what is tantamount is sufficient, Com. D. Pl. C. 38. Where common is claimed by a corporation it is as well to plead, that every burgess shall have common, as to plead that the corporation shall have it for themselves and every burgess; and the principle will hold in regard to any local custom where the members of a corporation claim a benefit in its right. In this case in trespass quare clausum fregit, the deft. 2 H Bl. 393, alleged a custom ancient and laudable, used and approved of 399, Fitch v. in the parish of for all the inhabitants for the time being Rawlings. of said parish to have &c., so stated the custom. Then averred, that at the several times when &c. he was an inhabitant of said parish, and at those times he entered the locus in quo, and played at cricket &c., and held good. The deft. alleged a local custom for the inhabitants of a parish to do so and so, that he was one of them, and stated his acts to be according to and within the custom. This seems to be the true way of pleading. Plt. traversed the custom. 1 Lev. 176. 5 Com. D. Pl. C. 38.4 Mod. 241, Waples v. 7. If one claim by custom or prescription, he must prescribe, and the plt. in his declaration must shew a good custom, as in case for not keeping a bull in a parish, he must shew a custom or prescription to keep one; so a loss for want of one Basset. must be alleged. § 8. It is a general rule, that whenever the party avows and justifies a distress for a thing against common right, a custom must be alleged to distrain in such case. 1 Salk. 175, Fletcher v. above. 9. But it is enough the party avowing be bound to per- Venhistone 2. form what is the consideration for the duty he claims; as if Elden, a borough be bound to repair a port, and is entitled to toll in a suit or distress for the toll, it need not be alleged the port is in repair; for it is sufficient the borough is bound to repair; for being bound by the custom to repair is the consideration. 2. The master of the vessel as to port duties is the exporter. Hawkins 2. Whoever claims an easement must plead it specially, as he wallis. claims a right in another's soil. 2 Wils. 175, Сн. 26. Commonwealth v. Manning, Mass. S. J. Court, June 1795. 10 Mass. R. Dorr. ART. 5. Cases in the United States. In this case there had been a custom, time whereof &c. in the town of Ipswich, for all the inhabitants of that town to water their cattle, teams, &c. at a certain watering place in Ipswich river, which there run along side of the highway, and the deft. erected a building that covered a part of this watering place; and he in one count in the indictment was indicted for a nusance to this watering place of all the inhabitants of said town, and held good; for they may have, time out of mind, such an easement; and if obstructed, the obstruction may be considered as a nusance, and indicted accordingly, and the inhabitants shall not be confined to their civil actions. Customs and usages at banks, see Jones v. Fales, and the Lincoln and Kennebeck Bank v. Page, Ch. 29, a. 10. § 2. No class of citizens can establish a custom contrary to 26, Homer v. law: though this custom may be useful to explain the intentions of the parties to contracts. As where an insurance was made "on a cargo from Boston to Archangel and back to Boston." No property was returned in the ship, in which case it was proved to be the universal custom in Boston where this insurance was effected, to return a portion of the premium It was known the decisions of the court had been otherwise. Held, first, on the point the law is well settled and generally understood: 2. "Evidence of custom and usage is useful in many cases to explain the intent of parties to a contract. But the usage of no class of citizens can be sustained in opposition to the principles of law." Judgment for the plt. for the whole premium. 2 Johns. R. 357, Cortely. ou v. Van Brundt. 11 Mass. R. 533, Cook v. Stearns. 3. Held, that prescription does not give the right of erecting a building on the land of another person; for title to lands must be by matter of record &c. A usage to erect huts on the shore to carry on a fishery must be pleaded or be in the notice. § 4. A right to enter on another's land to repair a dam &c. necessary to work a mill can exist but by grant or prescriptive right, though the dam and embankment were originally erected with the consent of the owner of the soil. The deft's. claim was stated in a special plea to which the plt. demurred for cause; 1. no legal conveyance pleaded &c.; 2. no prescriptive right shewn, nor is the mill described as ancient. But held, the deft. claimed a permanent interest in the plt's. land to keep up an embankment there, which cannot by our statute of 1783, Ch. 37, pass without deed or writing, and if intended to continue seven years, it must be by deed acknowledged and recorded. A license to do an act on another's land, as to hunt or cut a tree, may be by parol, where it passes no estate Cн. 26. Art. 5. in the land, and such a license is revocable when executory, unless a definite term is fixed, but irrevocable when executed. In England a custom, to be general and common law, must extend throughout the realm; here throughout a state. But the Dr. & Stud. judges in both, and not the jury, must decide if there be such 18. general custom or not. it.-2 Johns. 263, 264, is Several cases of prescription. Trespass in the plt's. close. 2 W. Bl. 989, Plea, Clode was seized of massuage and lands in Upottery; Clode & al. Addington v. and that "he and all those whose estate he had &c. for the But prescriptime being, had sued, and have been accustomed to have and tion in no use, and still of right ought to have and use" common of pas- title to land, case can give ture in the place where, for all commonable cattle levant and or to build on couchant, and justified, and the other defts. as his servants; plt. R. 362.-Co. traversed the right of common, and issue. Plt. went through Lit. 113.his evidence. Then the deft. opened two ancient grants without 2 Bl. Com. dates, which, as the judge observed, were inconsistent with plea. confined to Verdict for the plt. Deft. moved for a new trial; 1. because a corporeal his title was not laid by way of prescription, but only of usage; hereditato this answered, that those who prescribe in a que estate need r. King, 1 Ld not use the words, time whereof the memory &c., but mere Raym. 266. usage in all those whose estate the party hath, will imply the same thing: 2. Because the grant might be in confirmation of the prescriptive right and then consistent. Held, these grants might be before the time of memory, or so in confirmation of the prior prescriptive right. Matter to be left to the jury. New trial granted. ment.-Clark Cashford. 5. A lessee for years cannot prescribe in his own name. Dorney Such a prescription is bad after verdict. In a possessory action for an injury to an easement the plt. need not state his title, unless the deft. appears to be tenant of the land; but if the plt. offers to do it and states an insufficient title, it is bad. A termor cannot be charged in a que estate with an immemorial obligation. Salk. 357. 1 Mod. 105. 6. Replevin for taking six boat-oars at deft. avowed Willes 265, the taking damage feasant in his soil and freehold, bar, a pre- Ward v. Cresscriptive right to fish in the sea, use boats &c., and land &c. well, cites Noy 20.at this place. On demurrer held, that the right of fishing in 6 Mod. 63.— the sea is common to all the king's subjects: hence, a prescription for such a right as annexed to certain tenements is bad, and such a prescription is void. And generally, “a man shall not prescribe in that which the law of common right gives." "Now every man may fish in the sea of common right," as he may pass in the highway. Also held, 2. a prescriptive right claimed in respect of certain ancient tenements But see Pot&c. without saying how many, is bad. 3. If a man have a pre- post, and scriptive right in respect of one tenement and ten acres, and Beau v. another in respect of another tenement and ten acres, he Bloom, ante. ter v. North, CH 26. Lofft 76, 6 D. & E. 748, 2 Inst. 653.6 Com. D. 78. must make two several titles implied, and cannot blend them as one title. Prescription for common for four cows is good for one cow, 3 Salk. 279. Where a grant may be presumed after fifty years, see Ch. 79, a. 3, Mayor & al. v. Horner; prescription cannot be made where the creation of the thing in which it is claimed is within the time of memory. 7. Trespass in the plt's. close and breaking down his fence &c. Plea, the locus in quo was formerly part of Sharp Thom common, and so pleaded a right to enter the common to dig and carry away sand and gravel for the repairs of a house. Held, the plt. must allege the house was out of repair: 2. That he entered the place for the purpose of digging for and carrying away sand and gravel for the necessary repairs of that house And 3, that the same sand and gravel were used for that purpose. Deft. pleaded six different pleas, stating different prescriptive rights. 8. Prescription must be pleaded time out of mind, though -2 Roll. 269. limited to years; as for things ecclesiastical, though by canon law limited to forty years. But all time before Richard I, is 1 D. & E.667. 4 Co. 88. 6 Com. D. 80. time out of mind, on an equitable construction of the statute W. II, which limits it for a writ of right where a grant may be presumed. 9. Every prescription is good, if by any possibility it can be supposed to have had a legal commencement. 10. The same seven rules stated in art. 1, as to custom, apply as to prescription, except prescription must have a legal beginning. § 11. A prescription, that a great part of a river runs &c., 1 Lev. 237.- it is good; for it is not necessary to shew how much; so as much estovers as a man can dig in one day, as appurtenent to his house, is sufficient. Varying the thing does not destroy the prescription; see Mills &c. 2 Rol. 266.2 Cro. 491. 2 Cro. 446 Co. Lit. 115, a. 2 Mod. 104, Hickman v. As every prescription must be reasonable; a sheriff, for instance, cannot prescribe for taking gifts for doing his office. So one cannot prescribe to do a wrong or nusance, as to erect a dove-cote, or to lay or continue logs or wood in the highway. Nor against a statute, except the prescription be preserved by another statute, or except it be only declaratory of the common law or only affirmative. 12. One may prescribe for a thing that qualifies another Thorne & al. prescription; as if A prescribes for common, В may prescribe to enclose when he has lands lying there together, and plead accordingly. Stra. 1224. § 13. If any part of a custom as laid is unreasonable, the whole is void. If one prescribe for a certain number of cattle, he need not state they were levant and couchant, because it is no prejudice to the owner of the soil, the number being ascertained; otherwise, if the number be uncertain. 2 Esp. 26, Richards v. Squib. СH. 26. Art. 5. 14. In the time of queen Elizabeth, common was often Cro. El. 362, claimed by reason of inhabitancy; but in Fowler v. Dale it 363.-2 Esp. was disallowed. And the court said, if allowed, it would follow the person, and for no certain time or estate. 27. v. Ingham, $ 15. Replevin for taking the plt's. cattle; "avowry that 2 Wils. 258, Burnell was seized in fee and in possession of a certain antient 261, English messuage and that Ingham was tenant and occupier of ". Burnell & another ancient messuage so, prescribed for common in the locus in quo (for themselves" and all other occupiers of said messuages") and avowed taking damage feasant. Plt. traversed the right of common and issue, and verdict for the defts. Plt. moved in arrest of judgment, and said the avowry was ill. "The prescription for right of common being confined to the occupiers of the messuages who have but a mere temporary, and not permanent interest therein," cited 22 E. IV, 17, Gateward's case, 3 & 4 resolutions; and Hunt v. Beaucham, 33 Geo. II; where in trespass the "plea was that every inhabitant of the parish residing and dwelling in the parish, and being an occupier of an ancient messuage had aright of common" &c. Held, a bad prescription. So bad, to plead all the occupiers of a close, time out of mind, had used to repair the fences, Cro. El. 445, Anstye v. Fawkner; as occupiers is too general. So "a prescription, that possessors ought to repair fences" is a bad one; 2 Rol. R. 288; Palmer 331; Cro. Jam. 665. And though this avowry might be good as to Burnell, who was seized in fee, yet it was bad as to Ingham who avowed as occupier. The defts. said, if the plt. complained of an injury done to his soil, the deft. in his justfication must prescribe in que estate; but in trespass for taking goods, it is sufficient for the deft. to plead he was possessed of the locus quo, and the goods were damage feasant. The same for taking cattle damage feasant, where the deft. has common; and no difference between trespass and replevin for taking cattle only. The court admitted this reasoning of the deft. to be good in trespass, no title being in question; but said, "the right of common was laid in the occupiers only, and held it was necessary for the deft. in replevin to shew a title; for "in replevin the avowant must justify and shew by what authority he distrains." "There is a great difference between replevin See Cro. El. 885.-2 Esp. and trespass, because the avowant being to have a return of 31,32.-Salk. the cattle must shew a title in omnibus; otherwise, in tres- 107. pass in which the deft. need only plead an excuse," (2 Lutw. in |