jury, in order to make out to and have found by them, what he had left defective and wanting in this record; or if judgment should be given against him, he would be at liberty to bring a new action on a like demand, and supply the defects apparent in this.
On the other side it was said (J. Wallace, A. Chambre), that two objections were made upon the argument of this case in the court of King's Bench, and repeated in the court of Exchequer-chamber, against the right of Cocksedge the defendant in error, to recover in this action; first, that there was not sufficient proof of the existence of a custom or immemorial usage for the contractors, being freemen of the city of London, to receive for their own use the duty of one farthing a quarter upon the corn imported into the city, and consigned to them for sale. Secondly, that such custom or usage, if proved to exist in fact, was void in law.
A great part of the argument upon the first objection turned upon the extent in which a party who demurs to evidence by that act admits the facts to which the evidence so demurred to applies, and upon the power transferred to the court by such demurrer. On the part of the plaintiff in error it was contended, that the party demurring admits no more than the facts directly and positively sworn to, without admitting those inferences or conclusions of fact which a jury might draw from thence; that the usage directly proved in support of the custom on which the defendant in error founded his claim to the duties in question, extended no [707] further back than the commencement of the present century; and as nothing more was admitted by the demurrer, and the court could not infer the additional fact necessary to constitute a custom, namely, that the usage proved was founded on a more ancient usage, which had existed immemorially, but could only declare the law arising from the fact of an usage of about eighty years, the consequence would be, that the issue was not maintained on the part of the plaintiff in the action, and that judgment must be given accordingly. But it was submitted on the part of the defendant in error, that this restriction of the operation of a demurrer to evidence is not founded in law, and that the demurrer admits not only the facts, of which positive proof is made, hut also those inferences and conclusions of fact which are by fair presumption deducible from the facts so proved, and which a jury might properly have found upon such proof. Where facts are controverted, the power of deciding upon those facts rests exclusively in the jury, and as the law can only arise from the facts, the judges cannot determine the law till the facts are either found. by the jury or admitted by the parties; the demurrer to evidence by a virtual admission of those facts, which (but for the demurrer) would have been left to the decision of the jury, upon the evidence, renders their authority useless, and puts an end to it, referring the mere question of law, or, in the language of the demurrer, the sufficiency of the evidence in law, to the judges: but to take away the authority of a jury in matters of fact, while the facts remain in controversy, or to refer the law to the judges, leaving the facts undecided from whence the law is to arise, would be the highest absurdity, and yet these would be the consequences in all cases depending on circumstantial evidence, and particularly on the proof of customs or prescriptions, if the admissions were confined to the facts directly proved; it is reasonable therefore to extend the admissions as far as the power of the jury extends in the determination of facts, and consequently to all conclusions of fact, to which the evidence is applicable and admissible. These principles are further established by authorities of the greatest weight, wherein the nature and office of a demurrer to evidence are defined and facts determined to be admitted thereby, which were proved only by circumstantial evidence, or by what are called in the cases inducements to believe the truth, semblances of truth, and arguments of verity. The evidence of the custom, which from the nature of the subject must be circumstantial evidence, afforded the strongest proof of the existence of an immemorial usage: the constant enjoyment by the cornfactors, being freemen of the city, of the toll or duty upon corn consigned to them, as far as living memory could reach without interruption, claim, or denial, on the part of the corporation of the city, or of those who were charged with the duty, even in a single instance, was fully established. Evidence of this sort has [708] ever been considered as proof of rights founded on prescription, and would not only warrant a jury in concluding that the usage had existed from time immemorial, but being unimpeached by any other kind of testimony, the jury could not avoid drawing that conclusion, without disbelieving the veracity of the witnesses; and if (as at one time was contended on the part of the plaintiff in error) the whole complicated ques-
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