case pain against patrick and other easter term will mary roll see mercer v  den Ch Ch action on the case will not lie for disturb or hinder a passage in a  common highway except some special damage ensue but the remedy must be by  indictment S c show S c salk S c comb S c Carth S c holt S c ray Ent Mod  comens ld ray ld ray Com dig this be a special action on the case bring by  lsaac pain against Edward Patrick and William bolter for hinder the plaintiff  to go over a ferry the declaration set forth that the will of Littleport in  the isle or Ely be a ancient will within modern er p which there be a river  call Wilmer river over which there be a ancient passage in a ferryboat from  the northeast part of the say will to the end of ferry lane and from thence to  another place call adventurer bank that this passage be for all people at a  certain price c except the inhabitant of Littleport live in ancient house  there who by reason of a ancient custom in the say will be to pass ad it  pleases suum without pay toll c that the plaintiff be a inhabitant in a  ancient message in the say will and that there be a ancient ferryboat keep  there by the owner thereof till the first day of may in such a year after  which day the defendant do not keep the same per quod the plaintiff lose his  passage c the defendant protestand that the passage be not in a ferryboat  protestand etian that there be no such custom c and that the plaintiff be not  a inhabitant in a ancient message in Littleport for plea say that before the  exhibit of the bill they do erect a bridge over the say river where the  passage be ancient and this be do and maintain at their own cost and that the  plaintiff melius et quickly can pass over the say bridge c this be plead in  bar the plaintiff reply that he per once Pontus freedom passagii trans et  ultra stream predict secundum experience pillage in narration mentionat to  have non permission to be contra experience pillage et hoc a preparation be  verify c modern the defendant demurrer and the plaintiff join in demurrer the  question be first whether this be a good custom as lie in the declaration for  the inhabitant of a will to claim to be discharge of toll ration commorantiae  second if the custom be good then whether the defendant plea in bar be also  good to discharge themselves from keep of the boat three whether the plaintiff  can maintain this action this case be argue now and in easter term follow by  counsel for the defendant and in the same term by counsel for the plaintiff  those who argue for the defendant say that as to the first point though this  be set forth by way of custom yet it be in the nature of a prescription which  be always allege in the person but here it be for the inhabitant of a will c  now this can be good by way of prescription because in such case there must be  a certain and permanent interest abide in some person which can be here for a  mere habitation or dwell in a house will not give a man such a interest that  which make a prescription good be usage and reasonableness Leon Leon a but it  can be ex rational causan to prescribe ad it pleases suum for the ferryman  have neither any consideration or recompense for the keep of his boat when the  inhabitant may pass over at their pleasure without pay toll it be true a man  may prescribe to have common sans number which in strictness be to put in as  many cattle as he will but if he lie his prescription ad it pleases suum it be  not good meller v staple Mod a if therefore this be not good by way of  prescription it can be support by custom because that also must extend to what  have some certainty and which must likewise have a reasonable beginning see  fisher v wren ante b now there can be no certainty in this custom because the  plaintiff claim it only during his commorancy in a message in which he have  neither a certain time or estate and this be such a transitory interest which  be not allow in the law hob   c and therefore it have be adjudge that a custom  for a infant to sell his land when he can measure a ell of cloth be void  Godbolt Com dig enfant b see the case of zouch v parson burr d because it be  uncertain of what age he may then be and it be equal as uncertain how long a  man may live in one of these ancient house modern such a custom may be good in  point of tenure for it may have a reasonable commencement between lord and  tenant but this can be good as lie in this declaration for several reason  first because it be not allege that the defendant of right ought to keep a  boat there or that it be necessary for they to be always attend for possible  it may require the use of skilful man and therefore in all modern er p action  bring for not repair of way it be allege that the defendant to get again to  withhold second because it bring a charge without any recompense and this must  be very unreasonable it be true that a custom for fisherman to dry their net  upon another man ground be good see the yearbook Edward pl bro Abr custom pl e  which may seem to be a charge upon the land without any reward but the reason  be because the catch of fish be for the public benefit and every man may have  advantage by it a custom to have solan et separalem pastur have be former  doubt whether good or not but it be now hold to be good ante Mod f because the  lord of the soil may have some other recompense for it three because it be  unlimited for the tenant may pass and repass ad it pleases accord to this  custom but it ought to be lie for their necessary occasion for otherwise the  defendant may be deprive of their freehold because the tenant may always keep  the boat in use the second point be not much insist on which be as to the  matter of the plea only it be say that it be not so well to take away the  whole prescription that the plea may have be good if it have be until what  time the bridge fall or decay then the prescription revive again the three  point then suppose the declaration to be sufficient yet as this be upon the  record the plaintiff can not have this action because he have set forth this  to be a public and common ferry for all people to pass and that he be hinder  but do not show any particular damage and therefore can have no cause of  action it be like the case of a common highway which be out of repair for  which no man can bring a action unless he have a particular damage or loss  more than the rest of the people pass that way Henry pl   light more cro  Elizabeth   see Russel v the man of Devon that a action will not lie by a  individual of a county against the inhabitant of a county for a injury sustain  in consequence of a county bridge be out of repair term Rep a but the party  ought to be indict and this be to prevent multiplicity of suit for if one man  may have a action every person travel that way may have the like another  exception be take to the declaration videlicet that all the custom be lie to  be for the inhabitant of a ancient will modern to pass tollfree from ferry  lane to adventurer bank and they do not allege that bank to be within the will  see king v Gamlingay where a indictment against the parish of b for not repair  a road lead from I to b be hold to be exclusive of b and therefore bad term  Rep b those who argue for the plaintiff hold this to be a good custom as set  forth by he and as such it be not confine to the same rule with a prescription  which must have a lawful commencement but it be otherwise in a custom for it  be sufficient if it be certain and reasonable the case cite on the other side  be not to this purpose because they concern only such custom which relate to  some interest or profit in the land of another person but this custom be only  in a matter of exemption and easement this be the very difference take by the  judge in Gatewoods case   term Rep c where it be hold to be a good custom for  every inhabitant of a particular town to have a way over such land to go to  church or market because this be matter of easement and no profit now a  passage over a river be no more than a way and may be tie up to one or more  person accord to their commorancy see trip v frank to Rep d since therefore no  interest be claim by the plaintiff but only a easement this prescription need  not be lie in the owner but in the inhabitant of the will of Littleport it may  be compare to a case where a custom be lie for the inhabitant of a town to pay  a modus in discharge of tithe this be hold good hob Yelv e because it be by  way of discharge in the person land without claim any profit in that of  another it be also like the common case of a market when a man have pitch his  stall there no person can remove it for he have a right ration commorant  modern er p then as to the first objection upon the first point that a custom  to pass and repass ad it pleases can be good it be answer this passage be in  the nature of a highway over which a man may pass as often as he will and  therefore it be well enough as lie in the declaration as to the objection that  it ought to be lie in some person and not in the inhabitant it be say this be  a easement to the plaintiff and no such thing can be to one man but it make  another a trespasser and it be no interest in the plaintiff to be discharge of  a charge a custom to grind at the lord mill discharge of toll rule this case  for be it not as much charge for a lord of a manor to keep a mill as for the  defendant to keep a boat modern if the the plaintiff have prescribe then this  bad come within the rule of Gatewoods case   b a but he have allege a custom  and when such allegation be make they ought not to be too narrow search for no  reason care be give why a infant at fifteen year of age shall be capable to  make a feoff in one town and not in another Edward pl b then as to the three  point that this be lie to be a common ferry the plaintiff ought to show some  special damage to maintain a action to which it be answer that the right be on  the plaintiff side and that be sufficient to maintain the action it be not  like the case of a common highway as mention on the other side because this  action be confine to Littleport alone and no man be entitle to it but such who  inhabit that will so that every man can bring a action as to the exception to  the form of the declaration that adventurer bank be not lie to be in the will  it be say that the plaintiff only claim a right of passage over the river  which be lie to be in the will of Littleport the bank be only the terminus ad  who it be like the case where the defendant covenant to repair a mill and the  watercourse in a parish and also the bank belong to the mill in which case the  plaintiff have judgement burn v Haddon cro James and Bressey v humphreies cro  James c though be do not show in what will the bank be because it shall be  intend to be in the same will where the mill be afterward in Trinity term will  mary judgement be give for the defendant absent dolben justice who be also of  the same opinion it be hold that the custom be well allege both as to the  manner and matter it be true all custom must have reasonable beginning but it  will be very difficult to assign a lawful commencement for such a custom as  this be so it will be for the custom of gavelkind or borough English which be  circumscribe to particular place and since it be sufficient to allege a custom  by reason of the place where it be use it may be as reasonable in this case to  say that there have be a ancient ferryboat keep in this place it be but only a  inducement to the custom which do not consist so much in have a right to the  passage as to be discharge of toll this may have a lawful beginning either by  a grant of the lord to the ancestor of the defendant or by the agreement of  the inhabitant modern a custom allege for all the occupier of a close in such  a parish to have a footway c be not good baker v Brereman cro car   light cro  Elizabeth roll Rep a the reason be because the plaintiff ought to prescribe in  he who have the inheritance but where a thing be of necessity and no manner of  profit or charge in the soil of another but only a thing in discharge or for a  way to a market or to be quit of toll in such case not only a particular  person but the inhabitant of a will may allege a prescription this may be as  well allege as a custom to turn a blow upon another man land or for a  fisherman to mend his net there it be good as to the matter for it be only a  easement it be like a custom allege for a gateway or watercourse and for such  thing inhabitant of a will or all the parishioner of a parish may allege a  custom or usage in the place Gooday v Michael cro Elizabeth SC Owen b second  point but as to the plea in bar it be not good because the erect of a bridge  be but lie out a way it be a voluntary act and no man by reason of big own act  can be discharge of what he be to do upon the interest he have in the ferry  modern er p if the defendant bad petition the king to destroy the ferry and  get a patent to erect a bridge and have bring a writ ad quod damnum and it  have be find by inquisition to be no damage to the people then he may safe  have build this bridge three point but notwithstanding the plea be not good  yet the plaintiff can have no advantage of it because be can have a action on  the case for this matter for by his own show it be a common passage which be  no more than a common highway now for disturb he in such a passage no action  on the case will lie unless he have allege some particular damage do to  himself cro car   light cro Elizabeth   Davis see also roll Abr roll Abr more      Vaugh Carth salk stram ld ray comens Bac Abr c for if he can maintain such  a action any other person be entitle to the like and this will be to multiply  suit which the law will not allow but have provide a more apt and convenient  remedy which be by presentment in the leet if toll have be extort from he then  a action on the case have be the proper remedy see yearbook Henry pl and  Fitzherbert nat short catalog d but no such thing appear upon this declaration