Where a custom is harmless and affords recreation to a number of persons, though to the temporary inconvenience of an in dividual, it will be upheld and referred to a legal origin. Thus a custom for the inhabitants of a parish to play at cricket, or dance, on private property in the parish, was held good, as the lord might have annexed this condition to his original grant of the land. A custom must also be certain as to the description of parties benefited, and compulsory, without its depending on the caprice of any third person whether it can be acted on or not. It must also be consistent; for repugnancy to any other local custom would be plainly contrary to that origin in common con sent on which alone it stands: and lastly, it must be strictly pursued, being deroga• to fromthe common law.
custom varies from prescription in this : local custom is alleged iu legal forms as existing not in any person cer tain, but within a certain named district, without showing any legal cause or con sideration for it ; whereas prescription must have a presumed legal origin, and is either a personal right, always claimed in the name of a person certain and his ancestors, or those whose estate he has, or by a body politic and their predecessors, or else is in a que estate ; that is, a right attached to the ownership of a particular estate, and only exercisable by those who are seised of it. All customs of cities, towns, and boroughs, by which persons not freemen were prevented from keeping shops or using trades or handicrafts within them, were abolished by 5 & 6 Wm. IV. e. 76, 4 14, except in the case of the cus toms of the city of London.
Customs of traders, or seamen, as also of agriculture, mining, and other branches of industry, will be followed in the con struction of contracts, unless they are in consistent with their express terms, and, subject to that condition, they are ad missible even to annex incidents to them as to which they are silent. The " custom
of the country" means the custom of all parts of the country to which it can in its nature be applied. Thus a custom that land accruing imperceptibly to the sea shore belongs to the owners of the shore, applies to all such parts of the realm as adjoin the sea, unless limited in terms to a particular district.
The immemoriality of a particular local custom may be sufficiently proved by living witnesses who can attest its con tinued existence for twenty years, unless contradicted by contrary proof. Upon this doctrine will be found to depend a great variety of public as well as private rights to ancient offices, estraTs, treasure trove, wreck, nomination of juries, &c.; as well as to tolls of markets, port duties, tithes, ancient rents, &c., and to exemp tions from those burdens. The numerical amount of instances in which the privilege can be proved to have existed must be considerable or not according to the fre quency or the rarity with which according to the nature of the case they may be ex pected to recur.
Reiterated facts of user make a custom of trade ; but the mere opinion of mer chants is not sufficient for that purpose ; nor can any course of action pursued under colour of a custom of merchants alter a general rule of common law when established by judicial A long continued usage for exempting particular persous from a local burden, will, if necessary, be supported by pre suming that it originated in an act of par liament now lost, though no length of usage will avail against the terms of a statute to the contrary.