Mounsey v Ismay
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1865 |
| Date | 25 January 1865 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 1077
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 32 L. J. Ex. 94, 9 Jur. (N. S.) 306, 11 W. R 270; 7 L T. 717. Distinguished, Sowerby v. Coleman, 1867, L. R 2 Ex. 99. See further, 3 H. & C. 486.
[729] MoUNHEY v. ismay Jan. 20, 1863.-A custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close, for the purpose of holding horse racing thereon, is a good cubtom, and, in pleading it, it is not necessary to aver that the particular day was a seasonable time [S. C. 32 L. J. Ex. 94 , 9 Jur. (N S.) 306 , 11 W. E 270 7 L T. 717. Distinguished, Smuerby v. Coleman, 1867, L. R '2 Ex. 99. See further, 3 H. & C. 486.] Declaration. That the defendant broke and entered a certain close of the plaintiff, abutting, &c., and broke down, prostrated and destroyed the fences of the plaintiff of and belonging to the said close of the plaintift, and diveis postb and rails then standing and being in and upon the said close of the plaintiff, and affixed theieto, and albo prostrated, levelled and destroyed a bank then elected and being paicel of the said close, and pulled up and destioyed the thorns theie and theieon then growing: Whereby the plaintiff has sustained damage, &c. First ptea. That from time whereof the memory of man runneth not to the contrary, on a ceitain day in each and every year (to wit, on Ascension Day, commonly called Holy Thursday), horse races have been and of right ought to have been, and still ought to be, holden on a certain piece of land in the extra-parochial hamlet of Kingsmoor in the said county, being in the neighboui hood of the city of Carlisle, and from time whereof the memory of man runneth not to the contrary, there hath been and still of right ought to have been, and still of light ought to be, an ancient and laudable and reasonable custom, used and approved of in the said hamlet and in the said city of Carlisle, that la to say, that the freemen of the said city of (Jailisle, on the day aforesaid in each and every year, have during all the time aforesaid been used and accustomed to enter and of right ought to have entered, and still of right ought to enter, into and upon the said piece of land in the said hamlet, for the purpose of holding horse races thereon. And the defendant says, that the close in which, &c , at the [730] time when, &c , was parcel of the said piece of land in the said hamlet; wherefore the defendant, being one of the freemen of the said city of Carlisle, broke and entered the sard piece of land and the said close in the declaration mentioned, on Ascension Day 1862, for the purpose of holding the said horse laces, and because the plaintiff a short time before the time when, &c., had wrongfully placed and erected fences, poats and tails, and a bank and thorns upon and over the said land and the (c) Pollock, C. B., Martin, B, Chanuell, B., and Wilde, B. (d) See Expoffte Hwgan, 32 L. J. Bank. 15. 1078 MOUNSEY V. ISMAY I H ft C 731 part of the said land where the said horse races were accustomed to be held as aforesaid, and continued to keep the same placed and erected until the time, when, &c., insomuch that the said freemen weie prevented from holding and weie unable to hold the said horse races as they were accu&tomed and of right entitled to do, wherefore the defendant, being one of the freemen of the said city of Carlisle, for the purpose of enabling the said horse races to be held at aforesaid, did on the said day lemove the said fences, posts and tails, and the said bank and thorns, doing no more damage thereto than was necessary for the put poses aforesaid, which are the trespasses alleged in the declaration. Second plea. The defendant xepeats all the allegations in the first plea, except so much, of the said plea as alleges that the said custom therein mentioned was a custom for the freemen of the city of Carlisle. And the defendant says, that the said custom was a custom for all the citizens of Cai lisle instead of the freemen of Carlisle, and that the defendant, being one of the said citizens, committed the acts in the declaration and first plea mentioned. Third plea. That from time wheieof the memory of man runneth not to the contrary, on a certain day in each and every yeai (to wit, on Ascension Day, commonly called Holy Thursday), horse races have been and of right ought to have been, and still ought to be, holden on ceitam land [731] in the extra-parochial hamlet of Kings-moor in the said county, being in the neighbourhood of the city of Cai lisle, and from time whereof the memoiy of man runneth not to the contrary, there hath been and still of right ought to have been, and still of right ought to be, an ancient and laudable and reasonable custom, used and approved of in the said hamlet and in the said city of Carlisle, that is to say, that the freemen of the said city of Carlisle have been used and accustomed to enter and of right ought to have entered, and still of right ought to enter, into and upon the said land in the said hamlet on the day aforesaid in each and every year dining all the time aforesaid, for the purpose of holding horse races thereon, and to enter into and upon the said land in the said hamlet at a reasonable time before the holding of the said horse races in each year and every year during all the time aforesaid, for the purpose of preparing and making ready the said land for the more conveniently holding the said horse races on such day as aforesaid And the defendant says, that the close in which, &c, at the time when, &c., was parcel of the said land in the said hamlet, wherefore the defendant, being one of the freemen of the said city of Carlisle, broke and entered the said land for the purposes aforesaid, at a, reasonable time before the said horse races held on Ascension Day, 186:2: and because the plaintiff a short time before the time when, &c , had wrongfully placed and erected fences, posts and rails, and a bank and thorns upon and ov er the said land and the part of the said land where the said horse laces were accustomed to be held as aforesaid, and continued to keep the same placed and erected until the time when, &c, insomuch that the said freemen would have been prevented from holding, and would have been unable to hold the said horse races on the said day as they were accustomed and of right entitled to do, wherefore the de-[732]-fendant, being one of the freemen of the said city of Carlisle, for the purpose of enabling the sard horse races to be more conveniently held, did then remove the said fences, posts and rails, and the said bank and thorns, doing no more damage thereto than was necessary for the purposes aforesaid, which are the trespasses alleged in the declaration Fourth plea The defendant repeats all the allegations in the third plea, except so much of the said plea as alleges that the said custom therein mentioned was a custom for the freemen of the city of Carlisle And the defendant says , that the said custom was a custom for all the citizens of Carlisle instead of the freemen of Carlisle, and that the defendant, being one of the said citizens, committed the acts in the declaration and third plea mentioned. Demurrer to pleas, and joinder therein. Temple (Crompton Hutton with him), iu support of the demurrers The custom is unreasonable and bad in law Fust, it is not claimed for a seasonable time of the year, but for a day 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. Waiddl (Wiiles, 202) 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. [Maitin, B. In Abbot v. Jffxkky (1 Lev. 176) a custom for all the inhabitants of a !S&Cf33 MOUNSEY V. ISMAY 1079 town to dance at ,ill tunes of the year for their recieation in the plaintiff's close was held good.] That case was commented on by \Villes, J , in Btll v. H'attlt-ll (Willes, '202), 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 [733] Bell v. H'aidle, observes, "that this po.it of the opinion of the Court was given, not ni answer to the piincipal objection, svhich was that the prescription was bad, but in answer to the second objection that the right 01 easement should have been claimed by way of custom, not preset iption , though indeed it appears extraordinary that the verdrct should have removed erthei of the objections " In a note to Bell v. Wmddl, a case of Ahllecftamp v Johiiwu rs cited from Willea, C. 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...
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