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cause_n	according_a	law_n	person_n	1,451	5	4.8874	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A17593	The relation betweene the lord of a mannor and the coppy-holder his tenant. Delivered in the learned readings of the late excellent and famous lawyer, Char. Calthrope of the Honorable Society of Lincolnes-Inne Esq; whereby it doth appeare for what causes a coppy-holder may forfeite his coppy-hold estate, and for what not; and like wise what lord can grant a coppy, and to whom. Published for the good of the lords of mannors, and their tenants	Calthrope, Charles, Sir, d. 1616.	1635 (1635)	STC 4369; ESTC S107474	36,082	104

Prescriptions must be according to Common right that is to prescribe that is to have such things as is their right and reasonto have and not by Custome of Prescription to claim things by way of extortion or thereby to exact Fines of other things of his Tenant without good cause or consideration If the Lord will prescribe to have of every of his Coppy-holders for every Court that shall bee kept upon the Mannour a certaine sum of money this is no prescription according to common right because he ought for Justice sake to doe it gratis And so it is if the Shriefe will prescribe to have a certaine Fee for keeping his Turne this is not a good prescription But if the Lord will prescribe to have a certaine Fee of his Tennants for any extraordinary Court purchased onely for the benefit of one Tennant as for one Tennant to take his Coppy-hold or such like this is a good prescription according to the common right If the Lord will have of any of his Tenants that shall commit a pound Breach a hundred shillings for a Fine this is good Prescription but to challenge of every stranger that shall commit a Pound Breach a hundred shillings this is no good prescription If the Lord will Prescribe that every of his Coppyholders within his Mannour that shall marry his Daughter without licence shall pay a Fine to the Lord this is no good Prescription according to common right THAT A CVSTOME must be upon a good Consideration and what shall bee said such a Custome and what not COnsideration is a great effect in all Lawes and Customes and hath as great an an operation as any one thing belonging to the Law for in most causes it onely guideth and directeth Rights properties uses and estates sometimes according to the limitation and sometimes contrary to the limitation as well in cases of Custome as in cases of common Law for consideration is the beginning of all Custome the ground of all uses the reason of all rights and the cause of all duties For without Consideration no Custome can have continuance nothing is wrought by any conveyance no interest transferred no right remooved no propertie changed nor duty accrewed As if the Lord of a Mannour will prescribe that whosoever passeth the Kings high way which lyeth through his Mannour shall pay to the Lord of the Mannour twelve-pence for his passage This prescription is not upon good Consideration But if hee prescribe to have a penny of every one that passeth over such a Bridge which the Lord of the Mannour doth use to repaire this is good prescription upon good consideration If the Lord will prescribe to have a Fine at the Marriage of his Copy-hold Tenants in which the Custome doth not admit the husband to bee Tenant by curtesie nor the Wife to be Tenant in Dowre or have her Widdowes estate the prescription of such a Fine is not good But in such Mannour where the Custome doth admit such particular estates there a prescription for a Fine at the Marriage of his Coppy-holders is upon good consideration If a Coppy-hold surrender his Land to the use of I. S. so long as I S. shall serve him in such an Office if I S. refuse to serve his estate doth cease If a Coppy-holder doth surrender his Land to the use of a stranger in consideration that the same stranger shall marry his daughter before such a day if the marriage succeeds not the stranger takes nothing by the Surrenderer But if the Surrender bee in consideration that the stranger shall pay such summe of money at such a day though the money bee not payed yet the Surrenderer standeth good If the Coppy-holder in consideration of twentie pounds to bee payd by I. S. doth make a Surrender of his Lands to N. R. this Surrender is to the use of I. S. because of the Consideration expressed in the Coppy and not to the use of N. R. But if in the Coppy the use be expressed to N. R. and no consideration mentioned the use expressed shall stand against any consideration to be averred THAT A CVSTOME MVST be compulsary and what shall be said such a Custome and what not CUstome or Law must be Compulsary and not at the liberty of a man whether he will performe it or not for then it were of no force for all Customes and Lawes have their effect in two poynts That is in bidding that which is just and in forbidding the contrary So that Lawes and Customes are refrainers of liberties and do demaund execution of Justice not that every man should have or doe what they would but that which by Justice they ought whereunto by duty of Law and Custome hee is compellable for otherwise it were Voluntary in him which were to the infringing of the Law and good order As the Poets Oderunt peccare boni virtutis amore Oderunt peccare mali formidine poenae If the Lord will prescribe that every of his Tenants shall give him ten shillings a moneth to beare charges in time of Warre this is no good Prescription But to prescribe that they ought to pay ten shillings a moneth c. this is good For payment is compulsary but gift is Voluntary If a Coppy-holder doe Surrender his Land to the use of S. so that the sayd I. S. do pay him twenty pounds at such a day If I. S. please to pay the same this is an absolute Surrender and not conditionall because the compulsary But many Customes there are which at the beginning were Voluntary and now by continuance are growne Compulsary According to the Civill Law Quae initio fuerunt voluntatis ex post fact fuerint necessitatis which also agreeth with the Common-Law in many cases as I have partly touched before THAT A CVSTOME MVST be without preiudice to the King and by what prescription the King shall be bound and what not THE King hath that Prerogative over his Subjects that hee is not tyed to time as a common person is for though a common person may loose his right by non claime within a certaine time the Kings right is still to be preserued for Nullum tempus occurrit Regi Yet in speciall cases where the King is not Intituled agaynst such prescription by matter of Record there such Customes shall bind the King As for example if a Coppy-holder prescribeth that he holdeth of the King by Coppy this is good and by fine certaine and not arbitrable to have Waife and Strayes and Wrecke but not Cattalla feloni fugitorum and vtlagatorum without Charters The Kings Advowson shall never fall into lapse for not presenting within sixe moneths THAT A CVSTOME OVGHT to consist of perdurablenesse of Estate and of an able capacity TO those former parts whereupon I have declared a good Custome to consist may be added to eyther parts viz. That he which will claime by Custome must have a sufficient and perdurable estate to prescribe and also in his owne

same If the Tenants have used when they sow their Lands to pay the Lord Rent-corne and when it lyeth in Pasture to pay their Rents in Money this is a good Inter-user If the Tenants have used to pay to their Lord every fourth yeare a double Rent and every sixt yeare an halfe Rent this is a good Inter-user If the Tenants have used to have Common of Pasture in their Lords Woods for their Horse-Cattle and they put in their Neate-Cattle and destroy the Woods this is an abuser But yet it is but Fineable and no Forfeiture of the Common which they might have rightfully used No more then if they have Common for a certaine number of Beasts in the Lords Soyle and they will exceed the number this abuse by their Surcharging is onely fineable and no Forfeiture If a man have a Market to be used one Day in a Weeke the Non-user thereof is not forfeiture And if a man have a Market to be used on the Fryday and hee keepeth the same Fryday and Munday the Mis-user of the Munday is no forfeiture of the Fryday If a Man have a faire to be used two day and he keepes it three dayes this abuser is a Forfeiture If a man have a Faire for one Day and hee will keepe it two dayes and that is presented in the Exchequer If the party being called by Processe do clayme both dayes by Patent upon sight whereof it appeares he ought to have but one day by his Patent and the other by Prescription though the Prescription be found against him and that Day lost yet he shall enjoy the other Day If a Man prescribe to have a Faire yearely upon Bartholmew day and if the same doc fall out on the Sunday then to keepe the same the next Day following this is a good Prescription If the King doe grant to the Citizens of Norwich the Franchises and Liberties that London hath and the Franchises and Liberties that Southampton hath If the Citizens of Norwich doe abuse one of these Liberties that London hath this is a forfeiture of all those Liberties that London hath and of no other But if the King doth Incorporate a Towne and giue them by the same Pattent Speciall Franchises and Liberties the abuser of the one of these is a forfeiture of them all THAT EVERY CVSTOME must be reasonable and what shall be sayd A reasonable Custome EVery good Custome is grounded upon good Reason and that shal bee sayd in Reason a good Custome that in reason is a good Law for Law and Custome be of that affinity as both doth allow like reason and both doth forbid like inconveniences And the finall effect of both to Discusse and to discerne every mans true right and to give to every man that which is his owne For although Custome in some cases differ from Law and doth admit execution of some Acts without some ceremonies and circumstances as be required by the Law yet the end and effect of Custome is to maintayne the like reason that Law doth and to avoyde the like inconveniences And therefore if a Lord will Prescribe to have such a Custome within his Mannour that if the Beasts of any of his Tenants do him any Transgresse upon any of his Demeasnes and there be taken damagefezant that then hee may detayne them untill the owner shall satisfie him for his harmes as himselfe shall require This is no reasonable Custome that he should be his owne Judge But to Prescribe that if any of the Coppy-holders Beasts transgresse c. That the same be presented at his Court that there should be a forfeiture of his Coppy-hold this may be called a reasonable Custome If Tenants of a Mannour will Prescribe to hold without paying any Rents or Services for their Coppy-holds this is no good Custome But Prescribe to hold by Fealty for all manner of Services is good and reasonable If the Lord will Prescribe never to hold a Court but when it pleaseth himselfe this is not good But to Prescribe never to hold a Court for the Speciall good of any one Tenant except the same Tenant will pay him a fine for the same is good and allowable THAT EVERY CVSTOME ought to be certaine and what shal be sayd a Custome certayne THere is nothing more required in all Lawes and Customes then certainty for incertainty in all cases maketh confusion and therefore Law and Custome doth also agree in this poynt that without some kinde of certainty neyther Law nor Custome can be good for in divers cases where one thing may be taken to divers intents and the circumstances of the case such as to which intent the thing was done cannot be certainly judged there the same thing so doubtfully done shall to all purposes be judged voyde And incertainty of Customes and customary causes grows chiefly three manner of wayes That is to say sometimes of incertainty of the Persons Sometime the incertainty of the things and sometimes the incertainty of the cause and in some of these cases though there be at the first a Semblance of incertainety yet by Circumstances and Contingents the incertainties may be turned into Certainties As if the Lord of the Mannour will prescribe that whensoever any of his Coppy-holders dye without Heires that one other of the Coppy-holders of the same Mannour shall Till the Land for the yeare following and therefore this is no good Custome because the intent neyther is nor can be certaine which of the Tenants shall performe this Service But if the Custome be that if a Coppy-holder dye without Heire that then the eldest Tenant of that name of the sayd Mannour shall have this Land this is a good Custome and contayneth in it selfe sufficient certainty If a Coppy-holder doe Surrender two Acres of Land into the Lords hand the one to the use of I. S. and the other to the use of I. N. and doth not name in certainty who shal have the one Acre and who shall have the other the limitation of this use is voyd for this incertainty If a Coppy-hold be Surrendred to the use of I. S. and his Heires untill hee shall marry A. G. and after the sayd marriage then to the use of them two in taile speciall if after they doe marry then is the Surrender to them in taile and till then to him in Fee If the Lord will prescribe to have of his Coppy-holders in the time of peace two-pence an Acre of Rent and in the time of Warre foure pence an Acre of Rent this is good Prescription because there is a good consideration of the cause of this incertainety But to pay unto the Lord two-pence an Acre Rent when hee will and fourepence an Acre Rent when hee will this is no good Prescription because there is neyther good reason nor consideration heereof nor can it ever be reduced into any certainety THAT CVSTOME MVST bee according to Common right And what shall be said such a Custome and what not CUstomes and

for the same Coppy-hold now is hee become a good Coppy-holder without any further Admission If a Coppy-holder surrendreth his Land to the use of I. S. for life the Remainder to the use of R. N. for life and the Lord granteth the same accordingly and admitteth I. S. it seemeth this is a good admission to R. N. that is in the Remainder A Coppy-holder in Fee dyeth seised his heire may make a surrender to the use of a stranger without admission quaere But if a Coppy-holder surrender to the use of I. S. this I. S. cannot surrender to the use of a stranger without being first admitted him selfe If a Coppy-holder Surrender all use of the joyntly and they are admitted if the one of them dyeth the surviver needeth not t● bee admitted againe for the moytie But if a Coppy-holder having Issue two daughters and they are admitted and then the one of them dieth the other must needs be admitted for the other moyty for hee takes the same by discent L'heire dun Coppy-holder part prender profits avera accion de travers et Ferra Post fratris sufficicum deveant admittance 12. Eliz. 291. et part faire lesses per ans Denby et Bullock WHAT SHAL BE SAID a forfeiture of a COPPY-HOLD THE Tenant by Coppy standeth bound by his Tenure to the Lord that if hee doth any thing to the Lords dis-inheritance or in some cases if he doth transgresse the duty of a good Tenant he shall forfeit his Coppy-hold but because all offences are not equall so likewise there are degrees of punnishment for there is a difference betweene offences done wittingly and willingly and faults ignorantly and unwillingly committed And therfore some offences are forfeitures ipso facto some are onely forfeitures when they are presented and not before and some are onely fineable Forfeitures ipso facto are offences that lye in mis-fesans be apparent forfeitures when they are presented only are offences that lye in non fesans and is not apparent nor affirmatively to bee proved without presentment Offences Finable are offences of contempt and not of dis-inheritance As if a Coppy-holder will in the presence and sitting of the Court Baron say 〈…〉 extort and exact un-due 〈…〉 his Tenants or such 〈…〉 this is onely Fineable But 〈…〉 and there say being called forth to bee sworne of his homage that hee is none of the Lords Tenant this makes a Forfeyture of his Coppy-hold But if hee will there say that hee will shortly demise away that hee will bee no longer of any of the Lords Coppy-holders this is neither cause of Forfeyture not Fine If a Coppy-holder Sendente curia doe strike an other Coppy-holder or any other stranger this is onely Finable and maketh no Forfeyture If the Steward sheweth forth a Court Role to proove that I. S. is a Coppy-holder and this not withstanding hee will in the Court say that hee is a Free holder and sheweth forth a Free deed and claime thereby and teareth in peeces the Court Role and publisheth the free deed this a cause of Fine and Forfeyture But if the said Tenant will there upon some Colourable doubt and question which may arise whether hee bee a Free holder or a Coppy-holder say to the Steward because hee knowes not whether the rent that hee should pay bee Free rent or Coppy-hold rent he will pay it with protestation that the rent may be recorded as it shall fall out and with like protestation offer and do his service though in truth hee bee a Coppy-holder yet this deserveth neither Fine or Forfeyture If a Coppy-holder cannot pay his rent and will not doe his service this offence is on the Negative and maketh no forfeyture till it be presented Tenant per Coppie ne poet facere wast ne couper bois per vender mes pro reperacontantum 9 Hen 4. 12. 43. Ed. 3. 32. 80. But if a Coppy-holder doth Alien his Land by Free deed or will commit waste or demise his Coppy-hold contrary to the Custome or will sue a replevin against the Lord for a Distr lawfully taken for his Rent or service due or disclaime in the Land being summoned to the Lords Court or will there claime it as his free hold or will in any other Court untitle any other Lord unto it or bee attainted of treason or felonie or continue out-lawd or excommunicate during the Lords Court or refuseth to goe with his Lord or other commissionours for that purpose in the service of the prince to suppres Rebells riots or unlawfull assemblies All these offences be apparent mis-fesance and forfeiture ipso facto without any presentment But if a Coppy-holder being of the grand Inquest at the Assizes or Sessions shall indit his Lord of any manner of offence committed against the Prince or Lawes of this Realme or shall upon proces Compulsary give evidence against his Lord which is in any cause betweene his Lord and an other Common person or betweene the prince and his Lord without compulsary proces or shall make any bodily arest of his Lord by the commandment of the Shriefe or other lawfull authority or shall bring any Action or Suit against his Lord in any of the Queens Courts except a Replevin case aforesaid All these last recited be cause of neither Fines or forfeitures of any Coppy-hold Also a Coppy-holder not claiming his Coppy-hold after the death of his Ancestor within a yeare and a day at the Court if any bee it is a forfeiture for ever per. opin Catline Slowelle Case 372. ct c. il pesse dee bone custome in plusors Mannors If Coppyholders being on a Jury will not finde the waste committed or will not present things presentable this is a forfeituer of their Tenures if they be Coppy-holders by the opinion of Catlin Dier and Bracton 4. Eliz. Dier 211. pe 31. 6. et 7. Eliz. 233. b. 9. Hen. 6. 44. b. If a Coppy-holder will not be sworne to present such offences as are forfeitures this is a forfeiture of his estate so if he alien or make Coppy-hold free for tenne pound the Lord may enter for they are willfull acts for which the Lord may enter without presentment but for negligent offences as for not doing of services or not acceptance of a Coppy-hold after the death of his ancestor the Lord cannot seise without presentment of the homage And if an infant within the yeare after the death of his ancestor will not after the Court holden and proclamation made pray to bee admitted it is no forfeiture unlesse the Custome of the Mannour be that an infant ought to forfeit his estate by such negligence for it is but a claime at Common Law which bars not an infant which hath not discretion Betweene Hautrey and Buckshire and one of his Coppy-holders 12. Eliz. Rot 96. If thirteene Coppy-holders bee sworne in a base Court and twelve agree to give Verdict the thirteenth will not it is not a forfeiture for it is a good verdict