Prescription. gone, and the statute is alone to be looked to (Abergavenny v. Straker, 42 Ch. D. 89; see Birmingham v. Foster, 1894, W. N. 43). A statutory market will be protected by injunction even where the statute provides a particular remedy (Stevens v. Chown, 1901, 1 Ch. 894).

Stallage.

Tolls.

A market may be disturbed by establishing a new market, either within or without the limits of the franchise (Dorchester v. Ensor, L. R. 4 Ex. 341). If a new market is held on the same day as an old market, it is presumed to be a disturbance of the old market, but if on a different day actual damage must be shown (1b.; Elwes v. Payne, 12 Ch. D. 472; Yard v. Ford, 2 Wms. Saund. 500). A market may also be disturbed by establishing a rival place of sale, though not technically a market (London v. Lowe, 42 L. T. 16; Goldsmid v. G. E. Ry. Co., 25 Ch. D. 541; 9 App. Cas. 927; Abergavenny v. Straker, 42 Ch. D. 83); and the rival place of sale may be outside the limits of the franchise (S. CC.). But as an ordinary rule, the sale of a man's own goods in the ordinary course of business, in his own shop, outside the limits of the franchise, is not a disturbance (Manchester v. Lyons, 22 Ch. Div. 307). Where the grantee of a market from the Crown suffered another to erect a market in his neighbourhood, and to use it for twenty-three years without interruption, such user was a bar to an action on the case for disturbance (Holcroft v. Heel, 1 Bos. & P. 400; see 2 Wms. Saund. 502, n.; and Campbell v. Wilson, 3 East, 294). See, however, London v. Lowe (42 L. T. 16), where acts of disturbance were held not justified, although they had continued for more than half a century. The Markets and Fairs Clauses Act, 1847, consolidates the provisions usually contained in acts for regulating markets and fairs. As to the meaning of "fair," see Collins v. Cooper, 68 L. T. 450. And as to markets generally, see Pease & Chitty on Markets.

There is a distinction between market tolls which are paid for the use of a market, and stallage which is paid for the occupation of lands within the market (London v. St. Sepulchre, L. R. 7 Q. B. 313; R. v. Casswell, Id. 382; Yarmouth v. Groom, 1 H. & C. 102). The test is, has a man any occupation beyond what the general public has? (R. v. Bedford, 45 L. T. 616, 621). Stallage tolls are rateable, but market tolls are not (S. CC.; and see Percy v. Ashford Union, 34 L. T. 579). As to occupiers of stands within a market being entitled to franchise, see Hall v. Metcalfe, 1892, 1 Q. B. 208. The word “toll” in a grant of a market may include stallage (Newcastle v. Worksop Council, 1902, W. N. 77). An exemption from stallage for the inhabitants of a town can be only by way of custom, not by grant or prescription. Whether an exemption or discharge from toll, other than stallage, could be claimed by such grant or prescription for inhabitants generally was questioned in Lockwood v. Wood, 6 Q. B. 50.

Toll-traverse is defined to be a sum demanded for passing over the private soil of another (Com. Dig. tit. Toll (A.); see A.-G. v. Simpson, 1901, 2 Ch. 692), or a duty which a man pays for passing over the soil of another in a way not a high street (Vin. Abr. tit. Toll (A.)), or for a passage over the private ferry, bridge, &c. of another (1 Sid. 454). Toll-traverse may be claimed by prescription by a corporation or an individual, without alleging any consideration, and payment time out of mind is sufficient to support the prescription (2 Wils. 296; see Brecon Co. v. Neath Co., L. R. 7 C. P. 555; 8 C. P. 157; New Windsor v. Taylor, 1899, A. C. 41). Until the Prescription Act, 1832, such toll could not have been claimed unless it had been taken time out of mind (Fitzh. tit. Toll, pl. 3). It must be reserved contemporaneously with the dedication to the public (Pelham v. Pickersgill, 1 T. R. 660; see Lawrence v. Hitch, L. R. 3 Q. B. 521; A.-G. v. Simpson, 1901, 2 Ch. 693). In order to support a prescription against public right, a consideration must be proved; as where toll-thorough, that is, a toll for passing over the public highway, is claimed (Nottingham v. Lambert, Willes, 111; Brett v. Beales, 10 B. & C. 508; A.-G. v. Simpson, 1901, 2 Ch. 692). And where the plaintiff claimed toll-thorough, and showed that the soil and the tolls before the time of legal memory belonged to the same owner, although they had been severed since, it was held that

it was to be presumed that the right of passage had been granted to the Prescription. public in consideration of the toll (Pelham v. Pickersgill, 1 T. R. 660). A right of distress is incident to every toll (Bac. Abr. Distress, F. pl. 6), but it cannot be sold, except in the case of turnpike tolls under 3 Geo. 4, c. 126, s. 39. Tolls may be recovered in assumpsit, without giving proof of anything like a contract by the party against whom the claim is made; and stallage, which is a satisfaction to the owner of the soil for the liberty of placing a stall upon it, may be recovered in the same way without showing any contract between the owner of the market and the occupier of the stall (Newport v. Saunders, 3 B. & Ad. 411). The exemption from toll may also be claimed by prescription or by the king's grant (4 Inst. 252; 1 H. Bl. 206; London v. Lynn Regis, 4 T. R. 130; 1 Bos. & P. 512; 7 Br. P. C. 126; Truro v. Reynolds, 8 Bing. 275; Middleton v. Lambert, 1 Ad. & Ell. 401; 3 Nev. & M. 841). The citizens or burgesses of a city, borough, &c., may prescribe to be quit of tolls (F. N. B. 226, I.; 1 H. Bl. 206; Com. Dig. Toll (G. 1.)). As to whether inhabitants of a place may prescribe to be quit of toll, see Baker v. Brereman, Cro. Car. 418; recognized, 6 Q. B. 63. Port or anchorage tolls may be claimed by prescription (Foreman v. Whitstable, L. R. 4 H. L. 266). See further as to the distinction between toll-thorough and toll-traverse, Brecon Co. v. Neath Co., L. R. 7 C. P. 555; 8 C. P. 157.

An easement for a term of years cannot be gained by prescription What cannot (Wheaton v. Maple, 1893, 3 Ch. 65). No prescriptive right can be ac- be claimed by quired to justify a public nuisance (A. G. v. Barnsley, 1874, W. N. 37; prescription. see Brown v. Russell, L. R. 3 Q. B. 251; Mumford v. Oxford, &c. R. Co.,

1 H. & N. 34). Nor can a claim be made by prescription to anything Legal origin. which could not have had a lawful beginning (Goodman v. Saltash, 7 App. Cas. 648). But it seems that it is not necessary that the thing should be legal through all the time of prescription (Millington v. Griffiths, 30 L. T. 65, 68). And the courts are under an obligation to presume, if possible, a legal origin to support claims based on long continued and undisputed enjoyment (Halliday v. Philipps, 23 Q. B. Div. 56; Tilbury v. Silva, 45 Ch. Div. 98; L. & N. W. R. v. Fobbing Levels, 66 L. J. Q. B. 127; A. G. v. Wright, 1897, 2 Q. B. 324; A.-G. v. Copeland, 1902, 1 K. B. 690). Compare the presumption of legal origin in Goodman v. Saltash, sup., and Haigh v. West, 1893, 2 Q. B. 23; and compare the cases quoted as to lost grant, ante, p. 24.

A title to lands and other corporeal substances, of which more certain evidence may be had, cannot be made by prescription, as that a man, and all those whose estate he has, have been seised time out of mind of particular lands (Brooke, Prescription, 122; Vin. Abr. Pres. B. pl. 2; Dr. & St. dial. 1, c. 8; Finch, 132; 2 Bl. Comm. 264). The right to a given substratum of coal lying under a certain close is a right to land, and cannot be claimed by prescription. It is otherwise of a right to take coal in another man's land (Wilkinson v. Proud, 11 M. & W. 33; see Stoughton v. Leigh, 1 Taunt. 402). What arises by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands (which are now abolished by stat. 9 & 10 Vict. c. 62), felons' goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title (Co. Litt. 114; 2 Bl. Comm. 265). A prescription for a right common to all the subjects of the realm cannot be supported (Pell v. Towers, Noy, 20; Br. Abr. Pres. pl. 71). One prescription cannot be prescribed against another prescription, for the one is as ancient as the other; as if a man prescribe for a way, light or other easement, another cannot prescribe for liberty to stop it when he pleases (Aldred's case, 9 Rep. 58 b; 2 Mod. 105; Com. Dig. Prescription (F. 4)).

A man cannot prescribe or allege a custom against a statute of a public Statutes in nature because it is the highest matter of record in law, unless the custom relation to or prescription be saved or preserved by another act (Co. Litt. 115. See custom and Noble v. Durell, 2 T. R. 271; Goodtitle v. Baldwin, 11 East, 488). And prescription.

How prescriptive rights may be destroyed.

Prescription. Lord Coke makes a difference between statutes in the negative and in the affirmative; for a statute in the affirmative without any negative, express or implied, does not take away the common law; and likewise between statutes that are in the negative, for if a statute in the negative be declarative of the ancient law, a man may prescribe or allege a custom against it, as well as he may against a common law (Harg. Co. Litt. 115 a, n. (15)). But the benefit of a statute of a private nature may be waived, and the waiver may be presumed (Goldsmid v. G. E. R. Co., 25 Ch. D. 511; 9 App. Cas. 927). An ancient custom may be destroyed by the express provisions of a statute or by positive language inconsistent with the existence of the custom (Merchant Taylors' Co. v. Truscott, 11 Exch. 855; Salters' Co. v. Jay, 3 Q. B. 109). But where a statute making an act illegal comes into force while a prescription is running, the prescription, after the proper period has elapsed, may be an answer to an individual suing as an individual (Millington v. Griffiths, 30 L. T. 65). Where a statute has "embraced and confirmed" a right which had previously existed by custom or prescription, that right becomes thenceforward a statutory right. The lower title by custom or prescription is merged in and extinguished by the higher title derived from the statute (New Windsor v. Taylor, 1899, A. C. 49). A prescriptive right to take tolls was held to have merged in and been extinguished by statutes which were only temporary in their operation (Ib.). Easements are sometimes extinguished by the express words of a statute, e.g., the Inclosure Acts, 1801 and 1845 (see Turner v. Crush, 4 App. Cas. 221), or by necessary implication from a statute (Yarmouth v. Simmons, 10 Ch. D. 518).

By the common law a man might have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended for an indefinite series of years. But by the Statute of Limitations (32 Hen. 8, c. 2) it is enacted that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession had been within threescore years next before such prescription made (2 Bl. Comm. 263, 264). And the remedy for such rights, so far as it depended upon real actions, was further abridged by the abolition of real actions after 31st December, 1834, by the Real Property Limitation Act, 1833, s. 36 (see post). It was said by Lord Redesdale that where a profit of any kind to be taken out of lands has not been taken for a vast number of years, and the lands have been enjoyed without yielding such profit to third a person, the consequence is, that the title to it, whatever its nature, shall be presumed to be discharged (Norbury v. Meade, 3 Bligh, 245). But in Neill v. Devonshire (8 App. Cas. 135), it was said that an incorporeal hereditament such as a several fishery, which can only pass by deed, cannot be abandoned.

A title gained by prescription or custom is not lost by mere interruption of possession for ten or twenty years, unless there be an interruption of the right, as by unity of possession of right of common, and the land charged therewith of an estate equally high and perdurable in both (Co. Litt. 114 b). An unity of possession merely suspends; there must be an unity of ownership to destroy a prescriptive right (Canham v. Fisk, 2 Cr. & Jerv. 126). Thus, if a person having a right of common by prescription takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription; for the suspension was only of the enjoyment, not of the right (Co. Litt. 113 b). Easements are extinguished by the union of seisin of the dominant and servient tenements in the same person (James v. Plant, 4 Ad. & El. 749). They also are extinguished when the purpose for which they were created no longer exists (National Manure Co. v. Donald, 4 H. & N. 8). A prescriptive right may be lost by the destruction of the subject-matter (4 Rep. 88); but not by an alteration of the quality of the thing to which a prescription is annexed (Hob. 39; 4 Rep. 86 a, 87 a). Alterations in the dominant tenement will sometimes extinguish an easement (Allan v. Gomme, 11 Ad. & El. 772). The

release of an easement may be implied from abandonment or non-user Prescription. (Cook v. Bath, 6 Eq. 177). It was said that a release of a right of way, or of a right of common, will not be presumed by mere non-user for a less period than twenty years, although it is otherwise as to lights (Moore v. Rawson, 3 B. & C. 339). But "it is not so much the duration of the cesser, as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material" (R. v. Chorley, 12 Q. B. 519; see Crossley v. Lightowler, 2 Ch. 482; Eccl. Commrs. v. Kino, 14 Ch. Div. 213; James v. Stevenson, 1893, A. C. 162). The right to hold courts for the determination of civil suits, granted by the king's charter to the steward and suitors of a court of ancient demesne, was held not to be lost by a non-user of fifty years (R. v. Havering, 5 B. & Ald. 691; R. v. Hastings, Id. 692, n.). An unlicensed change of days for holding fairs may forfeit the charter (Newcastle v. Worksop Council, 1902, W. N. 77; where see as to losing the right to fair tolls).

A claim to prescriptive right may be defeated by showing the origin of Defeat of the user, and that it is not in accordance with the right claimed (Commrs. of prescriptive Sewers v. Glasse, 19 Eq. 155; see Neill v. Devonshire, 8 App. Cas. 135). An claim. ancient grant without date did not necessarily defeat a claim to a prescrip- Effect of tive right; for it might be either before time of memory, or in confirmation ancient grant of such prescriptive right, which is matter to be left to a jury (Addington v. Clode, 2 Bl. Rep. 989); but if the ancient grant is clearly not antecedent to the time of legal memory it will disprove immemorial prescription (Welcome v. Upton, 5 M. & W. 398; see R. v. Westmark, 2 M. & Rob. 305; compare Labrador Co. v. The Queen, 1893, A. C. 104). The grant by the Crown of a franchise to hold a market on Thursdays and Saturdays precludes the presumption of a lost grant from the Crown giving a right to exercise the franchise on other days (A.-G. v. Horner, 14 Q. B. Div. 245; see Neaverson v. Peterborough Council, 1901, 1 Ch. 22; 1902, 1 Ch. 557). Where a bishop, having free warren by prescription over the demesne and tenanted lands of a manor whereof he was seised jure ecclesiæ, accepted a grant from the Crown to himself and his successors of free warren over the demesne lands of all his manors in England: it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the demesne lands (which the court considered to be at least doubtful), it could not affect it over the other lands of the manor (Carnarvon v. Villebois, 13 M. & W. 313).

Formerly a prescription could not run against the king, as no delay in Prescription resorting to his remedy would bar his right. The maxim was nullum against the tempus occurrit regi (2 Inst. 273; 2 Roll. 264, 1. 40; Com. Dig. Prescrip- Crown. tion (F. 1); Broom's Maxims, p. 61, 6th ed.). This rule, however, was subject to various exceptions (see Co. Litt. 114 a and b, and Hargrave's note, 119 a). Liberties and franchises were excepted in the Crown Suits Act, 1769, limiting the claims of the Crown to sixty years (see post, note on the limitation of the rights of the Crown). By 32 Geo. 3, c. 58, the Crown is barred in informations for usurping corporate offices or franchises by the lapse of six years (see Bac. Abr. 7th ed., Prerogative (E. 6), 467, and stat. 7 Will. 4 & 1 Vict. c. 78, s. 23; R. v. Harris, 11 Ad. & Ell. 518). By the Prescription Act, 1832, ss. 1, 2 (ante, pp. 1, 4), the Crown is placed upon the same footing with the subject as to the rights affected by those sections. Secus, as to the rights affected by sect. 3 (Perry v. Eames, 1891, 1 Ch. 658; Wheaton v. Maple, 1893, 3 Ch. 48).

E. Customs and Usages.

Custom differs from prescription in this respect: that a custom is Difference properly a local usage not annexed to the person; such as the custom that between preall the copyholders of a manor have common of pasture upon the waste; scription and whereas prescription is in a particular person (Co. Litt. 113 b; 4 Rep. custom. 31 b). Custom is local, prescription personal: and the difference lies in the mode of claim suited to the difference of the claimants. Where the

Custom.

What customs are valid.

A custom must be -certain;

-reasonable,

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 prescribes in the que estate, it must be under cover of the tenant in fee (Bean v. Bloom, 2 Bl. R. 928; S. C., 3 Wils. 456; Sharp v. Lowther, Cas. temp. Hard. 293; Lynn Regis v. Taylor, 3 Lev. 160). See further, as to the distinction between custom and prescription proper, Brown's Law of Limitation, pp. 134, 209.

"A custom which has existed from time immemorial without interruption within a certain place, and which is certain and reasonable in itself, obtains the force of a law, and is in effect the common law within that place to which it extends, though contrary to the general law of the realm. In the case of a custom, therefore, it is unnecessary to look out for its origin; but, in the case of prescription, which founds itself upon the presumption of a grant that has been lost by process of time, no prescription can have had a legal origin where no grant could have been made to support it. Thus a custom for all fishermen within a certain district to dry their nets upon the land of another might well be a good custom, as it was held in 5 Co. 84; and yet a grant of such an easement to fishermen within the district eo nomine might well be held to be void" (per Tindal, C. J., Lockwood v. Wood, 6 Q. B. 64, 65; and see Goodman v. Saltash, 7 App. Cas. 654).

The "inhabitants" of a town cannot by that name and description prescribe for an easement in alieno solo; where such a claim has been allowed, it will be found to have been invariably rested on the ground of custom, and not of prescription (Fox v. Venables, Cro. Eliz. 180; Day v. Savadge, Hob. 85, 5th edit.; Gateward's case, 6 Rep. 59 b; S. C., as Smith v. Gateward, Cro. Jac. 152; Baker v. Brereman, Cro. Car. 418; Fitch v. Rawling, 2 H. Bl. 393; see A.-G. v. Acton, 22 Ch. D. 228). An easement as a right of way in alieno solo may be claimed by custom (Grimstead v. Marlow, 4 T. R. 717). As to a claim by "parishioners' to a church way, see Batten v. Gedye, 41 Ch. D. 507.

Custom is local common law"; which, as a general rule, is proved by usage (per Jessel, M. R., Hammerton v. Honey, 24 W. R. 603). As to the relation of custom to statute, see ante, p. 29. Equally in the case of custom as in that of prescription, long enjoyment, in order to establish a right, must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time (Mills v. Colchester, L. R. 2 C. P. 476; 3 C. P. 575). "It is an acknowledged principle that, to give validity to a custom, it must be certain, reasonable in itself, commencing from time immemorial, and continued without interruption (per Tindal, C. J., Tyson v. Smith, 9 Ad. & El. 421).

A custom accordingly must be certain. Thus a custom is void which sets up a claim to lay coals to an indefinite extent and for an indefinite time on the lands of other copyholders whereby their lands may be made practically useless, although they would still be liable to pay their rents and perform their services (Broadbent v. Wilkes, Willes, 360; recognized in Salisbury v. Gladstone, 9 H. L. C. 692; see the custom as to turbary, post, p. 41).

Again, a custom must be reasonable. "It belongs to the judges of the

land to determine whether a custom is reasonable or not. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law, for consuetudo ex certâ causâ rationabili usitata privat communem legem' (Co. Litt. 113 a), as the custom of gavelkind and borough-English, which are directly contrary to the law of descent; or, again, the custom of Kent, which is contrary to the law of escheats. Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth, as the custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another, in favour of fishing and for the benefit of navigation. But, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason; for it could not have had a reasonable commencement: as a custom set up in