tion of fact and law was transferred to the court, the defendant in error could have no apprehension of the possibility of a decision against him upon the ground of the non-existence of the usage.
In further support of this objection, it had been contended on the part of the plaints in error, that the usage proved had originated in and been continued by fraud and imposition upon the corporation of the city, and therefore afforded no proof of a rightful and immemorial usage. Of this supposed fraud there was not the least proof, but the contrary was manifest; the enjoyment of the tolls by the cornfactors had been open and notorious, the most considerable of them had been known to deal in no other way than as factors; the returned duty had been received from the collector appointed by the corporation, it had been returned to them without any inquiry or distinction, whether they were factors or proprietors, and as well upon notes signifying their claim to the duty as consignees only, as upon notes which had not distinguished whether they were proprietors or factors; the duty thus returned by the officer of the corporation had always amounted to a very large proportion of the whole annual collection, in some instances to upwards of seven-eighths. It could not therefore be presumed that the court of aldermen, who on behalf of the corporation annually examined the accounts o€ the collector, the collector himself, whose salary consisted of a poundage upon the net money only paid into the city, and the lessees of the corporation (when the tolls were in lease) could be ignorant of the fraud, if it had been such, or that they had at all times suffered a practice so prejudicial to their own interests without attention to the subject, or upon any other ground than a knowledge of the fairness and justice of the claims of the factors.
As to the second objection, it was not in any case necessary to shew what was the actual origin or commencement of a custom; if it has existed from time immemorial, and is not unreasonable in itself, it is presumed to have had a lawful commencement; even an act of parliament may be presumed, and the customs of London are in fact confirmed by act of parliament. There are many other modes by which this custom might legally commence; in the original grant from the crown to the corporation, the duty on corn consigned might be appropriated to the use of the freemen to whom it was so consigned; a corporation may take such a [709] grant, or they may prescribe for the benefit of individual members belonging to such corporation, and the individuals may enjoy and assert the rights so granted or prescribed for in the name and through the medium of the corporation to which they belong; the custom may derive a lawful origin from an ancient bye-law of the city, which, if necessary, ought to be presumed in support of it. There are sufficient reasons of policy and convenience which might induce the crown to make the grant, or the corporation to establish the bye-law; the supply of the city of London with corn must have been an important object in early times as well as at present, and the advantages given to freemen in respect of the duties, were inducements to them to apply themselves to the corn trade, and to others to purchase their freedom for the like purpose.
In the course of the argument in the Exchequer-chamber another objection in point of form was suggested, namely, that the defendant in error ought at the trial to have required from the plantiff in error an express admission of the conclusions of fact, and ought not to have joined in demurrer till such admission was made, and that having neglected so to do, the court could give no judgment, but must send the cause again to a jury by awarding an alias venire facias. This objection rested solely upon the supposed authority of a case of Wright and Pinder, reported in Alleyn, fol. 18, and in Style, 22, 34. Though there are expressions in the report of that case which give some colour to the objection, yet the case itself differs in a most material circumstance; the party demurring to the evidence expressly denied the fact, and the other party affirmed it, so that there was an issue joined upon the existence of the fact, which the court could neither determine nor consider as admitted. This case therefore did not apply to the present, and the doctrine which it was cited to prove is repugnant, both to the prior and subsequent determinations alluded to in the answer to the first objection, which establish the proposition, that a demurrer to evidence admits the inferences of fact to which the evidence applies. It was also to be observed, that there is not to be found in the books a single instance where, upon a demurrer to evidence, there has been an admission of the facts of which any evidence was given, in express terms, or in any other manner, than by the effect of the demurrer itself.
1590
