Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/92

76 to gavelkind, and borough-englih, the law takes particular notice of them, and there is no occaion to prove that uch cutoms actually exit, but only that the lands in quetion are ubject thereto. All other private cutoms mut be particularly pleaded, and as well the exitence of uch cutoms mut be hewn, as that the thing in dipute is within the cutom alleged. The trial in both caes (both to hew the exitence of the cutom, as, “that in the manor of Dale lands hall decend only to the heirs male, and never to the heirs female;” and alo to hew “that the lands in quetion are within that manor”) is by a jury of twelve men, and not by the judges; except the ame particular cutom has been before tried, determined, and recorded in the ame court.

cutoms of London differ from all others in point of trial: for, if the exitence of the cutom be brought in quetion, it hall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder ; unles it be uch a cutom as the corporation is itelf intereted in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf.

a cutom is actually proved to exit, the next enquiry is into the legality of it; for, if it is not a good cutom, it ought to be no longer ued. “” is an etablihed maxim of the law. To make a particular cutom good, the following are neceary requiites.

1.&ensp; it have been ued o long, that the memory of man runneth not to the contrary. So that, if any one can hew the beginning of it, it is no good cutom. For which reaon no cutom can prevail againt an expres act of parliament; ince the