As to gavelkind, and borough-engliſh, the law takes particular notice of them[1], and there is no occaſion to prove that ſuch cuſtoms actually exiſt, but only that the lands in queſtion are ſubject thereto. All other private cuſtoms muſt be particularly pleaded[2], and as well the exiſtence of ſuch cuſtoms muſt be ſhewn, as that the thing in diſpute is within the cuſtom alleged. The trial in both caſes (both to ſhew the exiſtence of the cuſtom, as, “that in the manor of Dale lands ſhall deſcend only to the heirs male, and never to the heirs female;” and alſo to ſhew “that the lands in queſtion are within that manor”) is by a jury of twelve men, and not by the judges; except the ſame particular cuſtom has been before tried, determined, and recorded in the ſame court[3].
The cuſtoms of London differ from all others in point of trial: for, if the exiſtence of the cuſtom be brought in queſtion, it ſhall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder[4]; unleſs it be ſuch a cuſtom as the corporation is itſelf intereſted in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf[5].
When a cuſtom is actually proved to exiſt, the next enquiry is into the legality of it; for, if it is not a good cuſtom, it ought to be no longer uſed. “Malus uſus abolendus eſt” is an eſtabliſhed maxim of the law[6]. To make a particular cuſtom good, the following are neceſſary requiſites.
1. That it have been uſed ſo long, that the memory of man runneth not to the contrary. So that, if any one can ſhew the beginning of it, it is no good cuſtom. For which reaſon no cuſtom can prevail againſt an expreſs act of parliament; ſince
