case pain against partridge easter term will mary roll a custom that the  inhabitant of a particular district have use and have a right to pass a  certain ferry tollfree be good and if toll be extort from such a inhabitant he  may have a action on the case but no action will lie against the ferryman for  a cro Elizabeth b cro James c   d Fitzherbert Abr estopel Henry pl e easter  term car in the common plea f see the case of smith v full Trinity term car  roll b r and Prickhouse v butler g show shower KB er p not keep a boat for the  purpose of the ferry unless some special damage ensue but he may be indict for  this neglect and it will be no excuse that he have erect a bridge across the  river for a common passage which be more convenient than the ferry SC ante SC  Mod SC salk SC comb SC Carth SC holt SC ray Ent action on the case by the  plaintiff as a inhabitant of a will in which the defendant by custom be use to  keep a ferryboat for all the inhabitant of the say will tollfree and all other  person c that the defendant do not c by which the plaintiff can not pass in  and about his necessary affair plea replication and demurrer diverse exception  take to the bar and replication but at last by direction of the court the  insufficiency of the count be argue Tremaine sergeant it be not say that he  ought but only use to keep the chief thing be that the plaintiff can maintain  this action for he say all the king subject have use and may pass thereby over  c and here be no particular damage and therefore a indictment only lie for  every man in the kingdom may then have this action which will be infinite and  vexatious he cite Henry pi   light cro Elizabeth Fenwick v Hewden more  williams case   Boultons case   powis e contra that this be bring as a  inhabitant shower KB he cite cro cro James that this be not such a action as  every subject may have it be find on the usage of a particular town and none  but a inhabitant of a ancient message of that town can bring such a action as  this a the inhabitant be to have a more particular benefit than other for they  be to pay no toll we have show that we do come and request this be bring upon  the demand in the Trinity term follow it be argue by the judge eyres justice  this custom be well allege both as to matter and manner in all custom there  must be usage and reasonableness b that may be reasonable in one place ration  loci which be not so in another c it be a good custom that one man shall have  the sole profit of such a ferry the defendant be not charge without a  recompense and yet if he be it be well enough as roll Abr cro car passage be  of public necessity it be well enough allege for the manner to go ad it  pleases suum and so be Gatewoods case Elizabeth the defendant plea be ill for  it be as have as to justify the stop a way by set out another and yet I think  judgement ought to be for the defendant for by the declaration this be  acknowledge to be a common passage for all the king subject and so be no other  than a common highway and if one may bring a action another and every one may  which the law abhor d the true difference be where there be no other remedy  but here be another by indictment at the suit of the king because it be a  common passage as every public river be it be a public street e the defendant  be as much indictable for not keep his ferry as he be for not repair a highway  to which he be oblige ration tenure and therefore judgement ought to be for  the defendant Gregory justice of the same opinion this be a easement and  therefore the custom be good f but the action lie not because it be common to  every one and the plaintiff have lie no particular prejudice by it to himself  holt chief justice the first question be this whether this be a good custom  that the inhabitant of a will be entitle to pass in a ferry without pay of  toll second if the plea be good that he have build a bridge over which be more  a brook Abr title action sur case b Gatewoods case   Leon   light shaftos case  side Davis cro Elizabeth roll Abr c Henry pl d williams case     light cro  Elizabeth more term Rep e   Inst cro car ld ray f Edward pl shower KB er p  convenient three if the action lie at all I be of opinion that this be a good  custom it have be hold in the common plea that it be not a good custom but  that it be good let we consider that this custom do not consist in charge he  with a ferry that there be a ancient shower KB ferry here be only a inducement  the keep of the boat be not part of the custom but it be a incident to the  keep of the ferry the custom do not consist in have a right of passage for  there be a ancient ferry all the king people be entitle to pass of common  right if a ferry be grant at this day he that accept such grant be bind to  keep a boat for the public good this custom be bare by way of discharge for it  be only to be ease of toll and so be Gatewoods case g the inhabitant of a will  may prescribe to a discharge h the true custom here be only to pass without  toll what they claim be only a discharge a freedom from payment of what the  rest of the king subject pay this be reasonable for the custom do not charge  the defendant to keep the boat beside here he have a recompense as he receive  the profit from all other though he have none from these I this custom may  have a reasonable beginning by agreement as that the inhabitant of the town  may be at the charge of procure the grant and in consideration thereof one man  shall find the boat and enjoy the toll but the inhabitant to pay none and such  agreement will be good at this day it be part of his interest his interest be  encumber with this discharge king second as to the plea that he have erect a  bridge cross the river for common passage that be a ill plea the erect of a  bridge be a voluntary act and he may pull it down again it be not in the power  of a man to discharge himself by any act that he can do if he have petition  the king for a patent to destroy his ferry and in consideration thereof he  will erect a bridge at his own charge and repair it and this find upon a ad  quod damnum to be for the public good this have be somewhat but he can do it  of himself three as to the action it lie not because the inhabitant have no  more damage than all the king subject l this right of passage be not vest in  he as a inhabitant there but as a subject for as a inhabitant he be only free  from toll here be another remedy the Henry pl be express that it be a  forfeiture and he be indictable for it he that have a new ferry by grant when  he accept of it charge himself with the repair and keep it if there have be  particular damage as if he have come over and toll be extort he may have have  a action m so he may if damnified for want of repair but not by a general  obstruction which be a common nuisance and therefore judgement for the  defendant shower KB holt chief justice the next day declare dolbin opinion to  be the same in omnibus suppose a lie damage by loss of a market have a  carriage ready bring to the place quaere if a action will lie