Q. B.]

BRYANT v. FOOT.

[Q. B.

ment. I think that that decision does not govern the present case, and that we are bound to consider the amount of the fee as creating an improbability so great that it could have existed before the time of legal memory, that no jury, rightly directed, could properly have come to any conclusion affirming its existence. If, therefore, in favour of vested interests, an arbitrary rule of limitation and prescription is to be laid down, which shall render the historical inquiry unnecessary, let it be done by the Legislature; but so long as a fee or duty depends upon prescription, it appears to me that we ought not to presume a legal origin for a payment against an absolute conviction that it never did or could exist before the time of legal memory. Therefore our judgment must be for the plt.

BLACKBURN, J.-In this case the question is, whether it is proved that a fee is due to the rector of Horton on the marriage of a man and woman in the parish church of that parish. The evidence has been taken by an arbitrator and stated in a case, from which this court is to determine, whether there is such a legal fee or not, the court having power to draw all inferences of fact. The substance of what is found is, that there is no evidence at all of what was the practice before the year 1808, but from that year down to the commencement of the present dispute, a fee of 13s., namely 10s. to the rector and 3s. to the clerk, has been almost uniformly paid; in a few instances the sum has been slightly larger, and in one instance, and in one only, it was less than 13s., being in that case 10s. 6d. I think the fair inference of fact to be drawn from that is, that as far back as living memory goes the fee of 13s. has been taken in this parish as a fee of right pay

for every marriage, "If by licence at 10s., | no real_ground for imputing rankness to that payand if otherwise at 5s." This appears to me to be strong to show that the fee, as a customary fee, is large even at the present day. If then apparently large even at the present day, what must it have been in the time of Richard I. when upon an inquisition in 1194 the price directed to be set upon a bull was 4s.; upon a cow the same; upon a plough-horse the same; upon a sheep with fine wool 10d.; upon a sheep with coarse wool 6d.; upon a sow 12d., and upon a boar 12d.:" (2 Annals of Roger de Hovenden by Riley, 337.) It cannot be doubted that, if we are at liberty to enter upon the historical inquiry, and are not precluded by some arbitrary rule from doing so, that the result must be fatal to the fee or duty claimed. Its effect must have been almost to prohibit marriage in the parish of Horton, at a time when marriage was considered as a sacrament, and it was the policy alike of law and religion to encourage it. Is it then possible to treat the present as a case in which the presumption of a legal origin ought to be drawn, although, as a mere matter of fact, we may not be satisfied with it? I confess that it appears to me that the presumption ordinarily to be made is actually rebutted by the irresistible inference arising out of the rankness of the amount. Common sense revolts at the idea that a fee of such amount could have existed in the time of Richard I., | and under such circumstances I cannot merely say that I am not satisfied that it existed; but I am compelled to say that I am satisfied that it did not, and could not have existed. In coming to the conclusion that the fee or duty claimed in the present case is bad for the reasons above stated, are we at all in conflict with the decision in Shepherd v. Payne? It appears to me that we are not. In the Court of C. P., Willes, J., in delivering the judg-able on a marriage, and I have no hesitation in drawment of the court, 12 C. B., N. S., 433, says: "It was argued that, considering the increase in the value of money since the epoch of legal memory, the claim was rank. This reasoning, however, if applicable to such a fee, is not conclusive of the present case, for a fee need not be of a fixed and ascertained, but may be of reasonable amount; and, exercising the power conferred upon us by the case to draw inferences of fact, we may conclude that, if the claim can be sustained in point of law, it was in fact for a reasonable fee." And in discussing the nature of the duty claimed in that case, he says, "The visitation of the archdeacon must for this purpose be considered as for the benefit of the parish at large, and amongst others of the churchwardens themselves, the performance of whose duties besides is facilitated by the assistance of the registrars." In the Court of C. P. the question of rankness, if applicable, was disposed of by the judgment of the court that the claim was "for a reasonable fee." When that case came before the Court of Error, Bramwell, B. supported the fee for the reasons given by Willes, J. in the court below, although the other judges present, without dissent ing from the reasons stated by Willes, J. in delivering the judgment of the court below, based their opinions on the ground that under the circumstances of that case the fees in question should be presumed to be "immemorial fees attached to the office of registrar." No point as to rankness was made by the learned counsel who argued in the Court of Ex. Ch., and the attention of the court was not called to it; but the case was argued mainly on the question whether there could be "a fee varying in pecuniary amount from time to time with the value of money and other circumstances, subject only to the restriction that it should be reasonable." The fees there claimed were from the churchwardens, as representing the entire parish, and not from individual parishioners, and therefore there was probably

ing the inference of fact, that the same fee was taken before 1808 when the evidence begins, though there is no further proof of that fact than that it was taken then and ever since. Marriage fees are not due of common right; but by immemorial custom in a parish a reasonable fee may be due there. This was not disputed on the argument. The contention on the part of the plt. was, that the evidence here established the fee of 13s. or none; and that 13s., which even in modern times is a considerable fee, must in the time before legal memory, that is to say, before 1189, in which Richard I. began to reign, have been so excessive that this court, as a jury, ought, in analogy to the cases in which moduses have been upset on the ground of rankness, to draw the conclusion of fact, that the fee originated since, or ought as a court of law to hold the custom bad on the ground that such a fee was then at least excessive and unreasonable. If this issue had gone to trial in the ordinary way, I think the question must have been left to the jury. I think that the judge must have told them that, where a right is shown to have been enjoyed by usage as of right as far back as evidence goes, a presumption is raised in favour of that right, and that if it could have a legal origin, it in fact had one, and therefore that in this case a presumption arose on which they would be warranted in finding this fee to have been taken before the time of legal memory, but I think that he must also have told them that the presumption was not one of law, but was a presumption of fact, capable of being rebutted, and that the amount of the fee was some evidence against that presumption. It would be proper in him to give them advice as to the degree of weight that they should give to the presumption in favour of the long-continued usage, and how much they should require to be proved in order to rebut it, and as the jury would on such a point be much influenced by the advice thus given, pro

Q. B.]

BRYANT v. FOOT.

[Q. B.

bably the verdict would, in substance, be deter-wrote has added force to the remark, "the rather mined by the opinion of the judge. In the present that a limitation of a writ of right is of so case, where the judges themselves are to find the long time past." But either way proves that the facts, the whole question, in my mind, depends on origin of the usage was since that date, and puts what is the advice that should thus be given by us. an end to the title by prescription, and the question as judges to ourselves as jurors. Now, if the proper comes round to be whether the amount of the fee, consideration is, merely whether the same usage namely, 13s., is by itself sufficient proof that it proved to have long continued in modern times, must have originated since. In Shepherd v. Payne did in fact prevail before the reign of Richard I. the Court of C. P. dealt thus with the argument I think very few prescriptive rights could be estab- founded on the facts in that case, that there was lished. No doubt usage for the last fifty or sixty evidence that the fee had varied in amount, and that years would be some evidence of usage 700 years considering the increase of the value of money ago, but if the question is to be considered as an since the epoch of legal memory, the claim was ordinary question of fact, I certainly, for one, would rank. "This reasoning, however, if applicable to very seldom find a verdict in support of the right such a fee, is not conclusive of the present case, for as in fact so ancient. I can hardly believe, for a fee need not be of a fixed and ascertained, but instance, that the same fees in courts of justice, may be of a reasonable amount, and exercising the which were till recently received by the officers as power conferred upon us by the case to draw inferancient fees attached to their ancient offices, were, ences of fact, we may conclude that, if the claim in fact, received 700 years ago, or that the city of can be sustained in point of law, it was in fact a London took before the time of Richard I. the reasonable fee." There are, no doubt, authorities to same payments for measuring corn and coals and the effect that prescriptive claims must be certain, oysters that they do now. I have no doubt the and those authorities made some of the judges in city of Bristol did levy dues in the Avon before the Ex. Ch. unwilling to affirm this doctrine unthe time of legal memory, and that the mayor, as necessarily, but they did not dissent from or overhead of that corporation, got some fees at that rule it; and my brother Bramwell preferred to base time, but I can hardly bring myself to believe that his judgment, affirming that of the C. P., on their the mayor of Bristol at that time received 5s. a-year reasoning, rather than on that which seemed to the from every ship above sixty tons burden which majority to render it unnecessary to decide the entered the Avon, yet the claim of the city of point. I think that, if a custom before legal memory Bristol to their ancient mayor's dues, of which to take a reasonable fee, which in process of time this is one, was established before Lord Tenterden has got fixed at 13s., is good, the doctrine is as apin 1828. I think the only way in which ver- plicable in the present case where the fee is payable dicts in support of such claims (and there are by the individual parishioner as in Shepherd v. Payne, many such) could have properly been found, though the fee was there payable by the parish is, by supposing that the jury were advised officer on behalf of the whole inhabitants. But even that in favour of the long-continued user a presump- on the supposition that the law requires an immetion arose that it was legal, on which they ought to morial fee, in order to be valid, to have been at all find that the user was immemorial if that was times fixed in moneys numbered, I think that, in necessary to legalise it, unless the contrary was accordance with the general practice of judges for proved, that presumption not being one purely of many years, we ought to advise ourselves, as jurors, fact, and to be acted upon only when the jury really to give such weight to the presumption arising from entertain the opinion that in fact the legal origin long-continued enjoyment as to find the usage imexisted. This was stated by Parke, B. on the first memorial unless there is proof showing clearly that trial of Jenkins v. Harvey as being his practice, and it could not be. The cases before Lord Tenterden's what he considered the correct mode of leaving the Prescription Act are to be found collected in question to the jury, and that was the view of the Serjt. Williams's notes to Yard v. Ford, 2 Wms. majority of the judges in the Court of Ex. Ch. in Saund. 174. They show that though enjoyment for Shepherd v. Payne. This is by no means a modern a period falling short of that since legal memory doctrine. It is as ancient as the time of Littleton, who was not a title, but only evidence of a title, yet in his Tenures, sect. 170, says, "that all are agreed juries were directed to find such a title, though they that usage since the time of Richard I. is a title; could never have believed it existed in fact. This some," he says, "have thought it the only title of had gone so far that in Penwarden v. Ching, M. & M. prescription, but that others have said that there is 400, where there was a plea of "an ancient window," also another title of prescription that was at the and the evidence showed that the window was only common law before any statutes of limitation of twenty-two years old, Tindal, C. J. refused to direct writs, and that it was where a custom or usage or a verdict on the ground of the variance, saying, other thing hath been used for time whereof the "The question is not whether the window is what mind of man runneth not to the contrary;" and they is strictly called ancient, but whether it is such as have said that this is proved by the pleading where the law in indulgence to rights has in modern times so a man will plead a title of prescription and custom, called, and to which the deft. has a right, for this is &c.," he shall say that such custom has been used the substance of the plea." This ruling perhaps from time whereof the memory of man runneth not might be questioned, but it shows what in the to the contrary, that is as much as to say, when opinion of the very learned and cautious pleading such a matter is pleaded, that no man then alive judge was the substantial question. The Prescriphath heard any proof to the contrary, nor hath no tion Act has in many cases rendered it unnecessary knowledge to the contrary, and inasmuch that such to resort to the old doctrine, but in such a case as title of prescription was at the common law, and the present we must do so, and inquire whether the not put out by any statute, ergo it abideth as it was plt. has satisfied the onus cast on him of rebutting at the common law, and the rather that the said the presumption arising from continued enjoyment limitation of a writ of right is of so long a time merely by the argument arising from the amount of past. Ideo quare de hoc." It is practically the same the fee. I must observe first that, though in many thing whether we say that usage so far back as proof cases the amount of a modus, or as it is called, its extends is a title, though it does not go so far back rankness, was held sufficient to rebut the proof of its as the year 1189, or that such usage is to be taken antiquity, yet, as far as I know, that reasoning has in the absence of proof to the contrary to establish never been acted on in any case except that of a that the usage begun before that year; and cer- modus decimandi, for what is said by Lord Campbell tainly the lapse of 400 years since Littleton in Treherne v. Gardner, 5 E. & B. 940, is entirely

Q. B.]

conclude that most of the payments now taken as ancient have either began or been increased since the date of legal memory. But I find no cases except those of moduses in which the amount of the payment has alone been held sufficient to rebut the presumption of immemorial antiquity; and there are so many vested rights that have been undisputed, or if disputed established, though the rankness, if a sufficient objection, would be patent, that I think the case as to moduses must be taken to establish an exception from 'the general rule (an anomalous and illogical exception, I agree), and that in all other cases the course of the judges has been not to direct juries to consider the rankness or large amount of a customary payment shown to have been in fact taken as of right as long as living memory or evidence goes, is not alone enough to rebut the presumption that the usage had a legal origin. The effect of a contrary decision on vested interests will be very startling, for there can seldom be a payment of sufficient amount to make it worth while to collect in modern times, and yet not so large as to be open to the objection of rankness. I think that the judges from the time of Littleton downwards have been desirous to make the law reasonable and practically just, and have to some extent succeeded in this; and though this may have been originally a judicial usurpation, I am very unwilling to undo what they have done, and recur to antiquated unreason. I think, therefore, that in finding the facts in this case I ought to give so much weight to the presumption in favour of the vested enjoyment as of right, and so little to the change in the value of money, that I ought to find this usage immemorial, and this fee ancient. If the fact that the fee is ancient be found, then I think the court, as a matter of law, must make every presumption in favour of it, if it could have a legal origin. I think, therefore, that our judgment ought to be in favour of the deft.

obater; at the same time I must acknowledge | that this affords a fair ground for an antiquary to that I do not see on what principle it could be evidence on which the jury might properly be advised to act in such a case, and not in others. But I think the evidence against the antiquity of a right arising from the change in the value of money very unsatisfactory. From what was said by Parke, B. in delivering judgment in the first case of Jenkins v. Harvey, "upon the correctness of the reasoning from the fact of the value of money great doubt may be entertained," he seems to have participated in this opinion. We know indeed that the coinage has since the reign of Richard I. been altered; so that what we now call a shilling contains less silver than what was called a shilling in that reign. I believe that twenty shillings in the reign of Richard I., when new, ought to have contained as much silver as fifty-eight shillings at present. But if I am to enter into this question, I think a considerable deduction ought to be made on this head, for I do not believe that the shillings in actual currency at that time were plump. I think it probable that they were much clipped and sweated, so that their exchangeable value was considerably below what it ought to have been. I also believe that silver was scarcer in those days than now; so that, as a general rule, commodities would exchange for less silver than now, and the country was no doubt much poorer than now. So that for all these reasons a fee of 13s. in those days would be much more difficult to come at than a fee of the same nominal amount now. But while on this the conclusion is based that a particular payment for a particular thing could not have been ancient, I think we make a rash leap in the dark. Many things were in that time so much rarer than they are now that they commanded a far higher price. Thus in Magna Charta (9 Hen. 1, c. 21) the "old price limited for carriage is declared to be for carriage with two horses 10d. a-day, for three horses 14d. a-day, so that the hire of an additional horse for a day would seem to have been 4d. In 13 Geo. 3, c. 78, s. 38, the commutation for statute labour is fixed for "a cart and one horse or beas of draught 2s., and for every cart and two horses or beast of draught 3s.," so that the hire of an additional horse was Is. It would be a very rash conclusion that the proportion between the value of money in 1773 and money of the same nominal value before legal memory was not more than three and one; but I think it clear that it would be a rash inference, and in the case of the hire of a carriage a wrong one, that a scale of prices that bore so high a proportion could not be ancient. I think the probable solution of this is, that marriage in the old times was scarce, and therefore commanded a high price. But why are we, without any reason that I know of, to conclude that priests were then common, and their services commanded a low price? In many of the cases in which moduses have been upset, the assumption seems to have been that, in making a bargain with the tithe-payers, the parson must necessarily have had the worst of the bargain, and that, if on looking at the price it appeared that if the bargain was really made before legal memory he might have made an extortionate bargain, that was an impossibility. Why should we say that the clergy before the time of Richard I., backed as they were by all the power of the State and the Papacy, should not often have succeeded in establishing large fees? I may remark, also, that as the marriage was first performed, and then the payment of the fee enforced by ecclesiastical censures, and not otherwise, it is probable that the fees were in practice omitted where the parties were poor; but I do not at all doubt that the value of money has changed since 1189, and to such an extent that most payments which it is now worth while to collect must have been at that time very high; and I do not dispute

COCKBURN, C. J.-The question in the case is whether a claim made by the rector of the parish of Horton to a fee of 10s. for himself and 3s. for his clerk, on the celebration of every marriage in the parish church, can be upheld in law. I am of opinion that it cannot. It is clear that a fee on the celebration of marriage in a parish church can only be claimed by virtue of an immemorial custom in the parish, and the question is whether the evidence establishes the existence of a custom in the parish of Horton for the payment of this fee from the time of legal memory. It appears that from the year 1808 to the time of bringing this action a fee has been invariably paid on the celebration of marriage in the parish. In a considerable majority of instances the fee paid was 10s. for the rector and 3s. for the clerk. In a few instances the fee to the rector was 13s. 6d., and to the clerk 2s. 6d. In a small number of instances, the fee to the rector was still higher. Now, though it is laid down that it is essential to the validity of a custom that it shall have been uniform, I think from the year 1808 downwards a fee of 13s. has been customary in this parish, although in a few instances a larger fee has been paid. Taking it, therefore, that the custom to pay the fee now claimed is shown to have existed since the year 1808, it would prima facie follow, according to the established rule as to presumption in such cases, that we ought to presume the previous existence of the custom for an antecedent period extending as far back as the time of legal memory. But it is equally clear that this rule must be taken with this important qualification, that it can only be applied when the presumption of immemoriality is not rebutted either by proof of

BRYANT v. FOOT.

Q. B.]

ANTHONY V. THE BRECON MARKETS COMPANY.

[Ex.

LUSH, J.-I have had an opportunity of consider◄ ing the judgments which have been written by each of the learned judges, and I concur with the Lord Chief Justice and my brother Mellor. I have not written an elaborate judgment, because I felt that I could not usefully add anything to the reasons that have been so elaborately stated by them.

doctrine of presumptions had proceeded thus towards entered into the consideration of the court, or to its development, the Legislature at length interfered, have influenced the judgment. I consider myself and in respect of real property and of certain speci- therefore fully at liberty to apply to the present fied easements fixed certain periods of possession or case the principle long since established in cases of enjoyment as establishing prescriptive rights. But modus, that rankness in an alleged customary paywith regard to all other prescriptive rights or cus- ment is fatal to its validity. I am fully sensible of toms not provided for by statutory enactments, the the inconvenience which may result from the applilaw remains as before. With reference to the doc-cation of this presumption to other instances of trine of presumption, Sir William Evans has ob- | customary payments, such as tolls, fees, and the served, that though it may be convenient that this like; but these inconveniences flow necessarily from doctrine should be adhered to, he should ever re- the vice and badness of the law which requires that tain the sentiment, that the introduction of such a nothing short of an existence for seven centuries shall doctrine was a perversion of legal principles and an give validity to a custom, however reasonable in itself. unwarrantable assumption of authority:" (2 Evans While that law subsists I am bound to act upon it, Pothier 139.) In this view I entirely concur. and and though bound by the authority of past decisions although I may feel bound to follow in the beaten to hold that usage extending as far back as living track which prior decisions have marked out, I am memory goes, or during a certain number of years, not prepared to do violence to my own convictions, requires the presumption of immemoriality, I canor to direct a jury to do likewise, by presuming in not be a party to subverting the law by presuming any case not governed by positive authority the that which I am perfectly satisfied is in point of fact existence of a state of things which I am satisfied impossible. The utmost length to which the cases never existed at all. But so far from it having been have gone is, that to uphold continued possession or held that, on a claim of a customary payment, the enjoyment, a previous possession or enjoyment for fact of such payment having been made as far back an indefinite period, or lost grants, or the like, may as living memory goes must necessarily in all cases be presumed. However improbable it may be that lead to the presumption of an immemorial custom, the presumption was well founded, it has nowhere it is well established that in the case of moduses been held that such a presumption is to be made the rankness as it is called of a modus-that is the when the thing to be presumed is impossible. Being fact that the amount paid is such that, looking to then convinced that the customary payment claimed the comparative value of money, it is impossible by the deft., the rector, could not possibly have that such a sum could have been paid by arrange- existed in the time of Richard I., and that consement between the parson and the parishioners in the quently the custom is not in the legal sense immetime of Richard I.—is fatal to the modus, as it rebuts morial, I feel bound to give judgment in favour of the presumption which would otherwise arise from the plt. the modern usage. The analogy between the case of payment under a modus and such a payment as the present appears to me to be complete. The doctrine as to rankness being fatal to a modus does not arise from any peculiarity in the nature of a modus. It rests entirely on the fact that the amount paid is incompatible with the possibility of such a payment having been established as far back as the commencement of the reign of Richard I. I am utterly at a loss to conceive why, if the payment of the fee claimed by the rector in the present case should appear equally rank by reason of its being in excess of what could have been a fee payable on marriages in the parish of Horton in the twelfth century, the same principle should not be equally applicable. The case of Shepherd v. Payne, in which the payment of fees to the registrars of an Archdeaconry Court was involved, and which was first before the Court of C. P. (12 C. B., N. S., 433), and afterwards before the Court of Ex. Ch. (16 C. B., N. S., 132), is the only authority, as far as I am aware, which may be thought to have a contrary tendency; but in that case, though the question of rankness incidentally arose, the Court disposed of it by holding that, as it appeared that the amount of the fees taken had varied from time to time, it might be inferred that the custom was not for a fixed payment, but for the payment of a reasonable fee. In that view the question of rankness, of course, became immaterial. The judgment of the Court of C. P. was affirmed by the Court of Ex. Ch., but not on the same ground, the Court not having apparently adopted the view (certainly a novel one) of the court below, that the want of uniformity in the payment usually thought to be fatal to a payment claimed by custom warrants the inference to pay such varying amount as might from time to time be reasonable. The Court of Ex. Ch., so far as I can gather from the judgment, proceeded on the ground that though the fees had varied, which circumstance would primâ facie be fatal to a customary payment, this objection ought not to prevail, the modern payments having been uniform. The question of rankness does not appear to have

Judgment for the plt.

COURT OF EXCHEQUER.
Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristers-at-Law

Jan. 18 and 26, 1867.

ANTHONY V. THE BRECON MARKETS COMPANY.

Local Act-Slaughterhouse-Consent of corporation to erection of Licence of local board-Demise of tolls -Towns Improvement Clauses Act.

The mayor, aldermen, and burgesses of B. were, by the council of the borough, the local board of health under the provisions of the Public Health Act. By the Local Government Act, which is to be read as one with that Act, the clauses of the Towns Improvement Clauses Act with respect to slaughterhouses are incorporated. The effect of the clauses as incorporated is to provide that no slaughterhouse shall be erected or used without the licence of the board of health. By a local Act, passed subsequently to the passing of the Local Government Act, for the better management of the property of the corporation of B., which had become much incumbered and inadequate to meet the charges upon it, a market-house and other property of the corporation was vested in a company incorporated by the Act for the purpose of managing the property and providing for the discharge of the incumbrances and payment of a certain fixed income to the corporation. By this Act it was provided that the company, with the consent of the corporation in writing under the hand of the town clerk, might erect and maintain slaughterhouses in the borough. The company had