This, though an observation apparently technical only, forms in its application the test by which we distinguish general from the local or particular customs just described. Particular customs must have had their origin in the peculiar wants of their respective districts, and are the remains of that multitude of similar usages from which Alfred and his Saxon succes sors collected those laws which may be considered as forming the common law of the nation at the time.
Many of these customs, for reasons now forgotten, have remained in some counties, cities, and manors, in their former vigour, though at variance with the laws of the rest of the nation, and are confirmed by Magna Charts and other acts of parlia ment. Such are the customs of gavelkind (abolished in Wales by stet. Henry VIII.), by which all the sons inherit alike, of Borough English, by which lands held in burgage tenure descend to the youngest, instead of the eldest son ; and of some boroughs, that widows shall have dower of all, instead of a third of their husbands' lands. A more striking instance is that custom in many cities and towns to hold courts for trial of causes without royal grant. The particular customs of manors as to descent were also of this kind, and bind the copyhold and customary tenants; but the law of descent is now made uni form. The existence of every such local custom, with the exceptions above noticed, as well as its application in each particu lar case, must be alleged in the pleadings, and proved, like any other fact, before a jury : sometimes they are open to evidence without being pleaded. Under no cir cumstances can these questions be enter tained by an ecclesiastical court without the consent of the party who impugns the custom.
Such customs of London as do not eon cern the property of the corporate body itself are proved by a peculiar mode, that of a certificate to the superior courts of law from the lord mayor and aldermen, conveyed by the mouth of their recorder in a solemn ceremonial ; without this cer tificate these courts will not take judicial notice of them.
A custom to be valid must have been used "from time whereof the memory of man runneth not to the contrary." This is "prescription," or "title by pre scription ;" and more accurately describes what is commonly called " time imme morial," which means, says Littleton, "that no living witness bath heard any proof or had any knowledge to the con trary," and as Lord Coke adds, "that there is no proof by record or writing or otherwise to the contrary." It has been doubted whether a prescription (in its proper sense) and a custom can coexist. There is some curious learning on this point collected in the arguments and judg ment in Blewett v. Tregoning, 3 Ad. and
Ellis. It has been held that a custom in a particular market that every pound of butter sold in it should weigh 18 oz. was bad, being directly contrary to 13 & 14 Charles II. c. 26, which enacted that every pound avoirdupois throughout the king dom should weigh 16 oz. only. The right to a particular custom must have been continued within time of memory peace ably and without lawful interruption, and will not be lost by mere disuse for ten or twenty years ; though in such case it be comes more difficult to establish it by proof. But it cannot stand against an express act of parliament to the contrary, for that itself proves a time when the right to such a custom could not exist. It must also be so far reasonable, accord ing to the standard warranted by authority of law, that though no particular origin can now be assigned for it, or though the state of things in which it is known to have arisen has been altered, no good legal reason can be given against its con tinuance. If it may have had a legal and reasonable origin, it shall be presumed that it actually had it; and its varying from the general law forms no objection, for that is the very essence of a particular custom : but if it be so contrary to any known rule or principle of law, or to the good of the public, or of a multitude of persons, that it cannot be presumed to have had a reasonable commencement in voluntary agreement for some beneficial object, as for securing possessions, pro moting trade, or suppressing fraud, it will be void. Thus no length of usage would render good a custom of the secretary of state's office to issue warrants in general terms against the authors, printers, and publishers of a libel, without naming them ; that course is contrary to clear and well-settled principles of law, which will not suffer a mere officer to decide on the individuals who are to be imprisoned. Again, a custom in an inferior court to try causes by six jurors was held bad, as contrary to the common law, though saved in Wales in some instances by a statute of Henry VIII, which confirmed such custom where it then existed. But long usage and acquiescence in one uni form payment, or in exempting persons particularly situated from contributing to it, are cogent evidence that it is reason able ; for, as Lord Mansfield once said, it cannot be presumed that during a long period of years one-half the parties were knaves in wrongfully receiving that to which they were not entitled, and the other fools for submitting to an unjust demand. It belongs to the judges of the courts to decide what is reasonable when the question arises in any matter that comes before the court.