MOUNSEY t. ISMAY. *733 ] uncertain, viz., Ascension Day, which may fall on any day between the 1st of May and the 4th of June, at which time crops must be growing. In Bell v. Wardell (1) a custom for all the inhabitants of a town to walk and ride over a close of arable land at all seasonable times of the year, was held bad, because it appeared that the trespasses were committed when the corn was growing. (MARTIN, B.: In Abbot v. Weekley (2), a custom for all the inhabitants of a town to dance at all times of the year for their recreation in the plaintiff's close was held good.) That case was commented on by WILLES, J., in Bell v. Wardell (1), who observed that "it was after a verdict which found the custom," and that "the COURT said, that perhaps it might not be good upon a demurrer." Mr. Durnford, however, in a note to *Bell v. Wardell, observes, "that this part of the opinion of the Court was given, not in answer to the principal objection, which was that the prescription was bad, but in answer to the second objection that the right or easement should have been claimed by way of custom, not prescription; though indeed it appears extraordinary that the verdict should have removed either of the objections." In a note to Bell v. Wardell, a case of Millechamp v. Johnson is cited from Willes, Ch. J., MSS., where a plea of a custom for the inhabitants of a certain town to play at rural sports in the plaintiff's close at all times of the year was held, after verdict, to mean "legal and seasonable times of the year." (MARTIN, B.: It must be assumed that the custom has existed since the time of Richard the First; and why may it not have been reasonable in the then state of the land? CHANNELL, B.: In Cocks edge v. Fanshaw (3), Lord MANSFIELD said that "the rule of law is, that whenever there is an immemorial usage, the Court must presume everything possible which could give it a legal origin." WILDE, B.: In Bell v. Wardell the declaration was not for treading down the corn on a particular day, but on divers times between the 2nd of May and the 12th. The plea alleged a custom to walk and ride over the plaintiff's close "at all seasonable times," and that in walking and riding the plaintiff necessarily trod down the grass and corn there growing, so that it appeared by the plea that the times were not seasonable, although alleged to be so.) (1) Willes, 202. (3) 1 Doug. 118, 132. Here the plea ought to have averred that the time was a "seasonable time." (CHANNELL, B.: The custom is claimed for a particular day; where it is not for a day certain, it may possibly be necessary to aver that the time was "seasonable.") The Court will judicially notice the time on which Ascension Day falls, and that it is not a "seasonable time." In Fitch v. Rauling (1), the custom *was for the inhabitants of a parish to play at all lawful games in the plaintiff's close "at all seasonable times of the year; " and which, as the COURT said in Millechamp v. Johnson, would not take away all the profits of the land, and might therefore have had a legal origin. Secondly, the custom is bad because it is claimed for the freemen and citizens of Carlisle, not inhabitants only. Such a custom, to be good, must be confined to residents in the city: Gateward's case (2), Chafin v. Betsworth (3). Mellish (Maule with him) appeared for the plaintiff, but the COURT said that they would consider whether it would be necessary to hear him. Cur. adv. vult. The judgment of the COURT was now delivered by POLLOCK, C. B.: In this case, in which Mr. Temple argued in support of the demurrer, we intimated to Mr. Mellish, who appeared in support of the plea, that probably it would not be necessary to hear him, and we are of that opinion. It was an action of trespass for breaking and entering a close of the plaintiff, and the pleas in substance alleged a custom for the freemen and citizens of Carlisle on Ascension Day to enter upon a piece of land, of which the plaintiff's close was parcel, for the purpose of horse-racing. The question is whether that custom is good; and we are of opinion that it is, and that the defendant is entitled to judgment. The custom here alleged is a custom confined to a particular day. It has been argued that the allegation of such a custom is bad on demurrer, unless it is alleged that the particular *day is a "seasonable day." The case of Millechamp v. Johnson (in notes to Bell v. Wardell) was cited, in which it was held that a custom alleged to enjoy rural sports, &c., at "all times," (3) 3 Lev. 190. (1) 3 R. R. 425 (2 H. Bl. 393). MOUNSEY v. ISMAY. [ *734 ] [ *735 ] MOUNSEY T. ISMAY. [*736] must be intended, after verdict, to have been proved to be at all "legal and reasonable" times, thereby implying (it was argued) that the restriction of the words "legal and reasonable " was necessary to make the custom good. The other two cases cited, Bell v. Wardell (1) and Fitch v. Rawling (2), were cases in which the custom was alleged as for "all seasonable times," and do not therefore decide anything as to the necessity of such an allegation. But the case of Abbot v. Weekley (3) was also cited, in which the allegation of a custom to dance, &c. on the plaintiff's land was alleged "at all times" without any qualification, and this was distinctly held to be good, although not restricted to "seasonable times." There is, therefore, no authority cited for the proposition, that in the case of a custom like the present, if alleged for a certain day, it is necessary to allege further that the day was a "seasonable one." Our opinion is, therefore, that the pleas are good, and that the defendant is entitled to judgment. MARTIN, B.: The only observation I have to make is, that the case of Bell v. Wardell has been evidently misunderstood. In Blackstone's Commentaries, vol. 2, p. 263, the case of Abbot v. Weekley is cited as good law; and it is expressly stated that such a custom is lawful. Therefore, assuming that Bell v. Wardell is at variance with Abbot v. Weekley, the latter case, being followed by Fitch v. Rawling, is an authority that such a custom is good. A great deal might be said to show that the judgment in Bell v. Wardell was given under an erroneous impression. A custom to be good must have existed from the time of legal memory, that is, the reign of Richard the First, and whether the land which is subject to the custom was then pasture or arable, it is now impossible to ascertain; and I think the circumstance of the land being pasture or arable at the time when the alleged trespass was committed is immaterial in considering whether the custom is good. (1) Willes, 202. (2) 3 R. R. 425 (2 H. Bl. 393). Judgment for the defendant. (3) 1 Lev. 176. 1863. GIBBINS v. BUCKLAND (1). (1 H. & C. 736–740; S. C. 32 L. J. Ex. 156; 9 Jur. N. S. 207; 11 W. R. 380; 8 L. T. N. S. 87.) A claimant in ejectment is entitled to a writ of possession, notwithstanding the lease under which he claims, though in force at the time the action was commenced, has expired before the time of trial, unless the defendant shows affirmatively that the claimant has no title whatever. THIS was a rule calling on the plaintiff to show cause why he should not be precluded from issuing or enforcing any writ of possession in this case. The affidavits, in support of the application, stated that the plaintiff sought to recover possession of certain premises, comprised in and demised by an indenture of lease, dated the 26th of September, 1849, granted by Edward Thornton and William Griffith, executors of Edward Norton Thornton, to John Harris for a term of thirteen years from the 29th of September then next ensuing, less the last ten days thereof, which had been assigned to the defendant: that the plaintiff at the trial put in an indenture of lease, dated the 24th day of June, 1843, granted by Thomas Puckle to the said Edward Norton Thornton, of the said premises for the term of nineteen years and one quarter of another year from the 24th day of June, 1843, videlicet, to the 29th of September, 1862; and the plaintiff put in and proved an indenture of assignment, dated on or about the 18th of September, 1862, of the said last-mentioned lease from the said William Griffith, as the surviving executor of the said Edward Norton Thornton, to the plaintiff. The LORD CHIEF BARON, before whom the cause was tried, *directed a verdict for the plaintiff, reserving to the defendant leave to move to enter the verdict for him. The writ in the action issued on the 24th of September, 1862, and the cause was tried on the 10th of December. In the present Term, a motion was made to enter the verdict for the defendant pursuant to the leave reserved, and refused. The defendant then took out a summons at chambers, calling on the plaintiff to show cause why the postea should not be entered up on the record according to the provisions of the 181st section of the Common Law Procedure Act, 1852. The LORD CHIEF BARON, before whom the summons was heard, declined to make any order; whereupon the present rule was obtained, against which Joyce showed cause: At The plaintiff is entitled to issue a writ of possession. the time he commenced the action he had a right to the posses (1) Knight v. Clarke (1885) 15 Q. B. D. 294, 296, 54 L. J. Q. B. 509. Jan. 31. [ 736 ] [ *737 ] GIBBINS [ *738 ] [ *739 ] sion of the premises, for the lease of the 24th of June, 1843, which was assigned to him, was then in force, but the lease of the 26th of September, 1849, which was assigned to the defendant, had expired on the 19th of September, 1862. The defendant was bound to show affirmatively that the plaintiff had no title whatever. It may be that he had an agreement for the renewal of his lease, or that he was tenant at will. The COURT then called on Karslake, to support the rule: The plaintiff is not entitled to issue a writ of possession, for his lease expired before the *time of trial. That is provided for by the 181st section of the Common Law Procedure Act, 1852, which enacts that "In case the title of the claimant shall appear to have existed as alleged in the writ and at the time of service thereof, but it shall also appear to have expired before the time of trial, the claimant shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the writ, and to a judgment for his costs of suit. (MARTIN, B.: That section does not say that a writ of possession shall not issue.) It does, by implication, for judgment is to be entered for the costs only. Where the claimant's title has not expired, the form of the postea prescribed by Schedule (A.), No. 17, is that he "was, and still is, entitled to the possession of the land." (POLLOCK, C. B.: Though the plaintiff's lease has expired, his title does not expire unless his landlord demands possession.) If the plaintiff had claimed in his writ to be entitled on the day after his lease expired, the verdict must have been found against him. * POLLOCK, C. B.: The I am of opinion that the rule ought to be discharged. claimant's lease was in force at the time he commenced the action, and though it had expired *at the time of trial, that did not put an end to his title, which is good against every one but his lessor. No doubt, if the lessor had demanded possession, he would have been entitled to it; but that he has not done: and therefore the claimant has a right to recover the possession from his tenant whose lease is at an end. The rule was granted upon the supposition that the affidavits would show affirmatively that the claimant's title was at an end; but they do not. Nothing |