Broadbent against wilks t g Wednesday July that a custom that where the  customary tenant of a manor have coal i lie under the freehold land of other  customary tenant within and parcel of the manor be may sink pit in those land  to get the coal c may lie the coal when get and the earth and rubbish c on the  land near to such pit such land be customary tenement and parcel of the manor  there to remain and continue not say how long or for a convenient time may lie  and continue wood there for the necessary use of the pit may take away in cart  and wagon part not say bow much of the coal and burn and make into cinder the  other part there at his will and pleasure be a have custom as be uncertain and  unreasonable judgement enter up for the plaintiff in trespass notwithstanding  a verdict for the defendant on a plea of justification the plea be have in law  a action of trespass quare enclosed space to break in pieces c be bring by the  plaintiff and the defendant in his plea by way of justification set forth that  the locus in quo be a customary tenement and parcel of the manor of Halton and  that in Halton aforesaid within the say manor there be and from time whereof  the memory of man be not to the contrary there have be a certain custom use  that when and as often as the lord of the manor or his tenant of the colliery  or coalmines in Halton aforesaid for will er p the time be for all the time  aforesaid have or have sink pit in the freehold land in Halton aforesaid  within and parcel of the say manor for the work of the say colliery there to  get coal come and arise from thence the lord of the say manor and his tenant  of the colliery or coal i in Halton aforesaid for the time be for all the time  aforesaid so sink pit in the say freehold land in Halton aforesaid within and  parcel of the say manor for the work of the colliery there to get coal come  and arise from thence will have use and be accustom to throw cast and place  with shovel spade pickax and corves the earth clay stone slate coal slack and  other rubbish come therefrom together in heap on the land near to such pit  such land be customary tenement and parcel of the manor aforesaid there to  remain and continue and to cast lie place and continue wood there for the  necessary use of the say pit and to take and carry away from thence with cart  wagon and other carriage part of the say coal so lie and place there and to  burn and make into cinder there other part of the say coal so lie and place  there at his and their will and pleasure and so go on to justify under the  custom there be a verdict for the defendant at the last Yorkshire assize it be  move in the last term by prime king serjeant Belfield serjeant and agar  serjeant to arrest the judgement a rule nisi be make and afterward may that  will king serjeant and Bootle serjeant show cause against the rule it appear  to be a case of some difficulty we take time to consider of it until this term  and now I deliver the judgement of the court absent Mr I fortescue a as follow  this be in arrest of judgement and the objection be that the custom insist on  by the defendant be in point of law no good custom saint because it be  uncertain and dly because it be a unreasonable one and we be all of opinion  with the plaintiff upon both point first that every custom must be certain be  lie down as a rule in all the book which treat of custom it be say of a custom  as by way of definition that custom ex certan et rational causan private  common feature law davis Rep and it must be certain for two plain reason saint  because if it be not certain it can be prove to have be time out of mind for  how can any thing be say to have be time out of mind when it be not certain  what it be dly it must be certain because every custom presuppose a grant and  if a grant be not certain it be void this be a rule so well establish that I  shall cite but very few will authority to support it it be so hold in davis  Rep roll Abr a roll Abr I d pl and d pl a custom for poor and indigent  householder live in a to cut and carry away rot bough and branch in a chase in  a be have the description of poor householder be too uncertain Selby v  Robinson d e but a prescription to take three Winchester bushel of barley out  of and for every ship cargo of barley bring upon a quay to be export in any  ship be sufficient certain for the word cargo be a mercantile term and  Intelligible when refer to a ship Str will see the observation of the learned  editor oct ed of sir I strange report on the accuracy of the print report of  that case a if every uncertain custom be void this can be good for nothing can  be more uncertain the word near but in Bennington v tailor Lutw a prescription  for so much money for set up a stall in a fair and for ground near the stall  and occupy with it be hold to be sufficient certain because it may be  ascertain by the usage of the fair b be not Intelligible but to make it  certain and Intelligible it shall be near or adjoin suppose many land and of  different person lie within a small distance some ten yard off and some twenty  c which of these land must be say to be near within the meaning of this custom  the custom that be lie be to take and carry away part of the coal place there  and to burn and make into cinder the other part thereof not say what part nor  how long it be to lie there so in this respect the custom be likewise quite  uncertain second all custom must be reasonable a custom that when a tenant  take a farm in which there be any open field more or less for a uncertain term  it be consider as a hold from three year to three year be hold to be  unreasonable and void because one rood may determinethe tenure of acre enclose  roe d Bree v lees Bl Rep so a custom in a parish that every parishioner may  bury his dead relation in the churchyard as near as possible to their ancestor  be rule to be unreasonable and have friar v Johnson will but it be a  reasonable and good custom that tenant whether by parole or deed shall have  the away go crop after the expiration of their term it be for the benefit and  encouragement of agriculture Wigglesworth v dallison Doug so also a custom  that the tenant may leave his away go crop in the barn c of the farm for a  certain time after the expiration of his lease and his quit the estate be good  Beavan v Delahay I h Bl Rep see the case of bell v Wardell sup and the case  there refer to e otherwise they be void as be will er p express hold in davis  Rep a b a Leon roll Abr   light b a a and in a a instance be put of such a  unreasonable and void custom will and certain no custom can be more  unreasonable than the present it may deprive the tenant of the whole profit of  the land for the lord or his tenant may dig coalpit when and as often as they  please and may in such case lie their coal c on any part of the tenant land if  near to such coalpit at what time of the year they please and may let they lie  there as long as they please for the custom as it be lie do not say at  convenient time nor till they can be convenient remove nor do it say that they  may be lie there for the necessary use or enjoyment of the pit so they may be  lie on the tenant land and continue there for ever though it may be more  convenient for the lord to bring they on his own land which be absurd and  unreasonable the objection that this custom be only beneficial to the lord see  Bateson v green d e Clarkson v Woodhouse m g b r ib d a and Folkard v Hemmett  sit after e Geo c b ib d a a and great prejudicial to the tenant be we think  of no weight for it may have a reasonable commencement notwithstanding for the  lord may take less for the land on the account of this disadvantage to his  tenant but the true objection to this custom be that it be uncertain and  likewise unreasonable as it may deprive the tenant of the whole benefit of the  land and it can be presume that the tenant at first will come into such a  agreement the case that be cite for the defendant be I Leon   Bulstr lev but  none of these case be at all like the present except the case in I Leonard  which come the near to it but that be different from it in this respect that  the custom there be certain and though it be not a very reasonable one it be  not so unreasonable but that it may have be a reasonable commencement as to  what be say that this defect be aid by the verdict for that the jury have find  for the defendant have find that there be such a custom we think that this  will not be so for if the custom be in point of law a void custom will the  find of the jury will not help it as have be determine in several case we be  therefore of opinion that judgement must be arrest and the rule for that  purpose make absolute the counsel for the plaintiff have mistake the form of  their rule afterward obtain another rule call on the defendant to show cause  why judgement shall not be enter for the plaintiff notwithstanding the verdict  for the defendant on the authority of salk Jones v Bodenham Carth Philips v  bury staple v Heydon Mod I roll Abr vin Abr title judgement and craven v  Hanley c b barn Com Rep which rule be oppose in the follow term Saturday Nov  that will serjeant and Bootle serjeant show cause for the defendant why  judgement shall not be enter for the plaintiff they admit the case cite by the  plaintiff counsel but endeavour to distinguish this case from they because  they say that in they there be but one count and one issue whereas in the  present case there be two count and the defendant have plead not guilty to all  the trespass in the second count and to the force and arm in the first count  and that issue be find for he they insist therefore that as the whole verdict  can not be set aside there can not be judgement will er p for the plaintiff  but that there must be a venire facias de to make new and for this purpose  they cite I roll Abr roll Abr pl and some other case but the case cite only  prove that where several issue be join and the jury do not find a verdict upon  all of they or where they find a special verdict on one of they which  afterward prove to be defective or where in the case of a demurrer to part and  a issue join as to the rest and a venire award to inquire of damage on the  demurrer as well as to try the issue the jury do not inquire of the damage  will on the demurrer in all these case there must be a venire facias de to  make new and that in the last case it can not be help by a writ of inquiry for  the jury must pursue their authority and try every thing that they be direct  to try otherwise their verdict be defective and there be no other remedy but a  venire facias de to make new see the case on this head collect in I d e n b  and in d e d a a but the present case be very different for here the jury have  find a verdict on both issue and there be no default in they and therefore  there be no difference between this and the case cite for the plaintiff only  the judgement must be enter in a different manner that be judgement for the  defendant on the issue that be find for he and a interlocutory judgement for  the plaintiff as to the other this give we a occasion to inquire bow the  judgement be enter in these case and how the judgement ought to be enter in  the present case we therefore enlarge the rule that precedent may be lie  before we and that the postea may be bring into court before we direct how the  judgement shall be enter it be say by the officer that in the case of craven v  Henley the judgement be enter up without take any notice of the verdict as  upon the defendant confess the trespass which we think very wrong and  therefore order that matter to be inquire into that if it be so and the  judgement not actual enter on record we may rectify it which otherwise we can  not do after the term in which the judgement be pronounce two precedent be  cite of the entry of these sort of judgement roll Abr and Carthew Camb salk  Lord raym and Com S c see also broom v rice Str c the case of Jones v Bodinner  the last of which seem to be exact copy from the other and in both of they the  issue and verdict be enter and then the record go on and say that because it  appear to the court that the matter plead by the defendant by way of  justification be not a good defence will and as he bath confess the matter  allege in the declaration therefore it be adjudge that the replication issue  and verdict shall be all set aside and annul and then a interlocutory  judgement be give as upon the confession of the defendant and a inquiry of  damage be award at first I think this a very good method of enter up judgement  in this case but upon consideration I think it will be better to enter it up  in this manner after set forth the replication issue and verdict and the  opinion of the court on the plea that notwithstanding such verdict judgement  shall be for the plaintiff because by this mode of entry some difficulty will  be avoid which may arise in the present case where the verdict be not to be  set aside in toto and my brother Burnett say there be several entry in  townsend judgement title I prohibition Vid town Judgm a in this manner in  order therefore that we may settle a right entry in the present case we  enlarge the rule till Monday the d of November the follow note occur on a  subsequent day in the same term it appear that no judgement have ever be enter  up in the case of craven v Henley one or both of the party be dead and in the  present case we order the plead verdict and issue to be enter up and then to  enter up judgement the judgement in this case be affirm in b r on error Str  and will c b on the first issue for the plaintiff notwithstanding the  verdictBarnes S c see also Kirk v Nowill I d e c where the same rule be make  but in Selby v Robinson d e where the defendant in a action of trespass have  justify under a custom which be have in point of law a defendant have by his  plea confess the trespass and have not insist on any legal justification but  we leave it to the plaintiff to enter up judgement for the defendant on the  second issue either now or after the writ of inquiry execute as he shall be  advise c by reason that the will er p