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this way, and Leicester men cannot know. Danby, C. J. and Moyle, J. concurred. Needham, J. (dissenting) . . . only from Leicester, for the vills adjoin and they know well enough. . . . There is no trace of the judges being troubled by the difficulty of men of one place claiming a customary right in another. In fact, the plea seems to be assumed good in law. It may be the judges did not take the point after counsel had joined issue on the custom in fact.1

(i) A claim by the inhabitants of X, Y, and Z to exercise a right in X.

In Edwards v. Jenkins it was held by Kekewich, J. that a custom for the inhabitants of several adjoining parishes to exercise rights of recreation over land situate in one of such parishes was bad. Dr. Jenks3 says this decision is probably wrong. It is also queried, at least as to the ground on which it was based, in 31 Law Journal (newspaper), 528. The author of that article thinks, however, that the decision might have been upheld on the basis of Sowerby v. Coleman. Mounsey v. Ismay1 was not considered by the learned judge. Carson does not comment on the decision and tacitly approves it.

In Brocklebank v. Thompson Joyce, J. held that there may be a lawful custom for inhabitants of a parish to have a churchway through the demesne of a manor which lies within the parish, and that prima facie a custom in reference to a churchway is parochial and not manorial. If it had been manorial it is doubtful if the custom would have been lawful,

1 In Dean of Ely v. Warren, 2 Atk. 189, Lord Hardwicke L.C., held that evidence of the custom of a neighbouring manor could not in general be received to show the custom of another manor, but that the rule is subject to exceptions where there is great similitude in the customs of manors in a district, e.g. the fens, the Derbyshire mines. [1896] I Ch. 308.

3 Digest of English Law, 2nd ed., § 1301, n. (a).

• Supra.

5 Prescription and Custom, p. 118.

6 [1903] 2 Ch. 348. Cf. Hicks v. Woodesson, 4 Mod. 337.

for then it must have been alleged in respect of some few tenements in the manor which happened to lie in the parish. The manor and the parish overlapped and the way was in the part common to both areas.

In Bourke v. Davis1 Kay, J. said that a custom must apply within some recognised district, and perhaps that is the true rationale of the matter. The theory is that custom, being local law, must coincide with some recognised jurisdiction. When, therefore, to revert to our example, X, Y, Z form some such homogeneous unit, the inhabitants of all three may lay a custom to do an act in X. But if Y and Z are independent units, their inhabitants may not join with those of X to claim a customary right there, for that would defeat the established rule in Sowerby v. Coleman. The other authorities bear this out.2 The judgments of Joyce, J. in Brocklebank v. Thompson and of Kay, J. in Bourke v. Davis, are particularly significant to this effect. In Lord Fitzhardinge v. Purcell, to a declaration in trespass on the foreshore (of which the soil, as well as a several or free fishery thereover, was proved to be vested in the plaintiff), Defendant pleaded inter alia a custom for all inhabitants (or alternatively for all inhabitants being professional fowlers) of a group of manors, to shoot wild duck in the locus in quo. But there the group of manors constituted formerly one large manor. And Parker, J. had so many other grounds for holding the custom void that he did not raise the point. He also held the usage to be not proved in fact by sufficient evidence.

1 44 Ch. D. 110, at p. 120.

2 See Co. Litt. 33b, 110b; Halsbury, Laws of England, X. 229; Commissioners of Sewers v. Glasse, 19 Eq. 164; 7 Ch. App. 456, C.A., especially per James, L.J., at p. 465, "The whole district is one known to the law." This was a claim by owners and occupiers of lands in Epping Forest, against the lords of several manors, to have common on all waste lands in the forest irrespective of manorial and parochial boundaries. Cf. Re Hainault Forest Act, 9 C.B. N.S. 648.

3 3 [1908] 2 Ch. 139.


Coke always speaks of customs as prevailing in some known territorial unit, and enumerates them, from a county to "an upland towne."

Apparently the only cases to the contrary are as follows: (i) a custom has been presumed to apply in the Fobbing Levels or some such undetermined "district." (ii) A Year Book case which is not altogether in point because it does not apply to any definite locus at all in which the privilege is to be exercised.3

These considerations go rather to support the decision in Edwards v. Jenkins.4

The categories defined above do not pretend to be exhaustive. They may however be of some service in enabling a cautious conclusion to be drawn. Where a rule has for its scope a class of persons limited by inhabitancy and a right whose subject matter lies in the same defined district, which is known to the law as such, it may be safely said that the right is capable of being established by particular custom. If the ambit of the rule is widened in respect of the class of subjects, it is probably a common law precept or it is naught. Beyond that it is not safe to generalise.

1 Co. Litt. IIob.

2 L. and N.W.R. Co. v. Fobbing Levels Commissioners, 75 L.T. 629. 3 Y.B. 2 R. III. f. 15b, Mich. pl. 42; S.C. Bro. Abr. Prescription 100. "A good custom to prescribe that where a swan comes on anyone's land adjoining the Thames and lays there, the owner of the swan shall have two of the best cygnets, and the owner of the soil the third." But in Bro. Abr. Customs 77 the same case is reported as a custom of the shire of Buckingham.

• Supra.

Misrepresentation in Equity

By E. C. S. WADE, M.A., LL.M.,


MISREPRESENTATION has had a chequered career since the Judicature Acts; there are few branches of law where more misunderstanding has prevailed as to the effect of fusion. Some of this is due to misapprehension of the celebrated "conflict" provision in the Judicature Act, 1873, S. 25. Cases of conflict dealt with by the Act and the supplemental statute of 1875 were not intended to be comprehensive. The courts were soon called upon to interpret the general sub-section (11) of section 25. For example, in Joseph v. Lyons1 a proposition was put forward which, had it been accepted, would have abolished the distinction between legal and equitable title. This arose through the confusion of specific enforcement of a contract to assign after-acquired chattels with such assignment itself. The latter was impossible at law, and could only be effected by a covenant to deliver the goods when acquired by the assignor. This led to an attempt to maintain that, since equity had power to enforce the covenant specifically, the goods themselves could, after fusion, be regarded as impressed with the quality of assignability at law. This illustration selected by Maitland2 serves to show the difficulty of determining what is meant by a conflict between the rules of law and equity. The proposition would never have been put forward, even unsuccessfully, had it been fully appreciated that the equitable remedy in such a 1 (1884) 15 Q.B.D. 280. 2 Maitland, Equity, pp. 152 et seq.

case was merely to implement the common law remedy for breach of covenant, i.e. damages, and therefore was purely personal, and in no way created a new proprietary right, viz. assignability of after-acquired chattels.

The consequential effect of the sub-section has been, not merely to render it difficult to determine where a conflict exists in cases not expressly provided for by the Legislature, but in some cases to slur over the rule that equitable rights can only be enforced by equitable remedies and that there are, apart from certain well-known exceptions, such as Companies (Consolidation) Act, 1908, s. 84, no common law or statutory remedies applicable to equitable rights. The remedies available for innocent misrepresentation are a sufficient illustration of this. Again, until Colls v. Home and Colonial Stores,1 there was some doubt as to whether an equitable remedy could not be granted to protect a legal right of which there had been no infringement in law. From Colls' Case it is clear that, when an equitable remedy is sought for breach of a legal, as opposed to an equitable, right, then not only must the extent of the legal right be ascertained by application of legal principles, but before an equitable remedy, e.g. an injunction to restrain the infringement of a legal easement, will be granted, the act complained of must be found in law to amount to a breach of the legal right and, therefore, justify a claim of which the old common law courts could have taken cognisance. From the point of view too of the former exclusive jurisdiction of equity a recent decision of the House of Lords— Leeds Industrial Society v. Slack2 is important. By the interpretation of Lord Cairns' Act, 1858, s. 2, approved by the majority, it now appears that damages in lieu of an injunction may be granted by an extension of the old equity jurisdiction on a bill 1 [1904] A.C. 179.

2 [1924] A.C. 851.

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