right or in some others a sufficient ability or capacity to prescribe Touching the first it is to be understood that hee which will prescribe must have a certaine and indefeazable estate and not otherwise As if a Tenant at Will or at Sufferance after hee hath occupied the Land for ten yeares will prescribe to have the same for ten yeares this is not good But a Tenant at Will after the Custome although he came in at the first by the Lords will yet doing and paying that which hee ought hee may prescribe to hold the Land whether the Lord will or no And although a Coppy-holder may prescribe in this forme against his Lord yet against an Estranger for a common or such like kind of profit hee cannot prescribe bâ—t in the right of the Lord neyther yet can a Tenant for life or for yeares prescribe in the right of their owne Estate onely because it lacketh continuance to make a custome or prescription except in some cases of necessity the Lord of a Mannour or of a Patronage for yeares or life may grant a Coppy in perpetuity or presentation for a longer time then the estate of the Grantor doth continue and this is admitted causa necessitatis and not Iure prescriptionis To the second Capacity must be in himselfe that doth prescribe which Ability and Capacity must consist in the person of him that doth prescribe For as prescription may be sometimes in respect of estate Mannour Lands or Offices so may prescription sometimes be in respect of person which person is not to be understood of a private person but of a body Politicke not that many persons may prescribe except the same be incorporate and to prescribe in respect of their incorporate Capacity and not in respect of their private Capacity As if the Inhabitants of Dale will prescribe to have Common in the Soyle of S. this is no good prescription for that they be not Incorporate they must prescribe that H. Lord of the Mannour of Dale for him and his Tenans within the said Mannour have used to have Common within the sai Soyle so is it for Coppy-holds for they must prescribe in the name of their Lord in such a case If a man prescribe that hee and his Ancestors have had such an Annuity this is not good But if a Bishop doe prescribe that hee and his predecessors have had such an annuity this is good The pleading of Prescription must bee used in forme of Law as other matters that be pleadable and forme must be used likewise in pleading of Coppy-holds and other Customary Titles for avoyding of confusion and discord as well as in other cases of the Common Law the forme of pleading prescription doth differ as the quality of the thing whereof prescription is made and somtimes doth differ as the persons doe differ which make the prescription As if a Coppy-holder makes his Title to his Land by prescription he must plead that the same Land is and hath bene time out of minde Demised and Demiseable by the Coppy of Court Role according to the custome of the Mannour wherof it is holden If two men as yonger brethren will make their Title to Land in Gavell-kinde they must say that the same Land is of the Tenure and Nature of Gavell-kinde which time out of minde have bin parted and partable between Heires males So if the yongest Sonne maketh his Title to Land in Borough English he must plead that time out of minde the Custome of the said Mannour hath bin that when or at what time soever a Coppy holder dyeth Seised of any Coppy-hold Lands in the same Mannour having divers Sonnes that the same hath used Iure Hereditario to descend unto the youngest Sonne c. And as the forme doth differ in the things wherof the Prescription is commonly made so doth it differ as the Persons do differ which prescribe as a private person shall prescribe in him and his Ancestors whose estate he hath An Incorporate person in him and his Predecessors A Lord of a Mannour in him and them which were Lord of that Mannour A Sheriffe in him and those which have beene Sheriffes of the same County A Steward of a Mannour in him and those which have beene Stewards there A Free holder in him and them which have beene Stewards to the said Lord. A Coppy-holder shall Prescribe against an Estranger that the Lord of the Mannour for him and his Tennants at will have used the like c. WHAT NECESSITY A Court Baron is of whereof it doth Consist how it is defined and what shall bee said a sufficient Court Role to make a Coppy-hold EVery Mauour hath a Court Baron incident to it of common right and common necessity and this Court Baron consisteth of foure speciall parts viz. The Lord the Steward the Tennants and the Bayliffe A Court Baron is defined to bee an assemblie of these partes together within the said Mannour to take Councell care and enquire of causes concerning the same Mannour to see justice duely executed the acts and ordinances there done to bee recorded in the Roles of the same Court which Roles are the evidence of all ordinances dutyes customes and conveyances the Lord and Tennants of the said Mannour and are to bee entred by the Steward or an Officer indifferent betweene the Lord and his Tennants and the same Roles to remaine with the Lord thereby to know his Tennants his Rents and his Fines his Customes and his services And the particular grant of every Coppy-hold to bee coppyed out of the Roles the coppyes thereof to bee delivered to every particular Tennant neither can they make any other Title to their said Tennements but by their said Coppy If the Lord of the Mannour having Coppy-hold Lands Surrendred into his hands will in the presence of his Tennants out of the Court grant the same to an other and the Steward entreth the same into the Court Booke and maketh thereof a Coppy to the grantee and the Lord dye before the next Court this is no good Coppy to hold the Land But if the same Surrender and grant bee presented at the next Court in the life of the Lord and the grantee admitted Tenant and a Coppy made to him this is good Coppy If the Lord of a Mannour having ancient Coppy-hold in his hands will by a deed of Feofment or by a Fine grant this Land to one to hold at the will of the Lord according to the Custome yet this cannot make a good Coppy-hold If the Lord in open Court doth grant a Coppy-hold Land and the Steward maketh no entry thereof in the Court Roles this is not good though it bee never so publicke done nor no Collaterall proofe can make it good But if the Tenant have no Coppy made unto him out of the Role or if hee loose his Coppy yet the Roles is still a sufficient tytle for his Coppy-hold if the Roles bee also lost yet it seemeth that by proofe hee can
taken contra to Master Brooke in nov â—se 426. But though a gift in Taile of a Coppy-holder be not conteined in the same Statute of William the Second Yet I thinke in such Mannour were time out of minde they have used to make gifts in Taile of Coppy-hold Lands there such gifts bee good at this day and they may make protestation in the nature of Avy writ as apeareth by Littleton WHAT SHALL BE SAID a good Surrender AS in the conveing of Free Lands there is required some ceremony and publick notice so is there in the assuring of Coppy-holds necessary some publicke Fact to bee done therein which is the Surrender In which ceremonie there is contained two effects the one what is surrenered and to whose use the other that it be done with the Lords good will and for that cause it is surrendered into his hands And although of the meanes a Mannour of this surrender there bee divers kinds as within some Mannors to Surrender by the hand of another Coppy-holder and in some other to surrender into the Stewards hands in some to the Bayliffes hands and some by giving a yard to the Steward in some by giving his hand or his glove which bee outward signes of his intent Yet in all these kindes the words of Surrender must not bee divers but one or to one effect and must bee either words of Surrender expressed or words of Surrender implyed and therefore if a Coppy-holder will bargaine and sell his Land to I. S. and this is found by the Homage and I. S. praieth to bee admittted Tenant yet the heire of the Coppy-holder shall avoide the Admission because of the insufficency of the Surrender taking by the words of Bargaine and Sale and not by words of Surrender opi Sur. Dier 8. Eliz. Lou ill dit relees ne vault avrer Come unsurrender If a Coppy-holder commeth into the Court and desireth his Lord to admit his sonne to bee Tenant in his fathers place this seemeth a good Surrender to the use of the sonne If a Coppy-holder will in the presence of other Coppy-holders of the same Mannour say that hee is content to Surrender his Coppy-hold Lands to the use of I. S. this is no good Surrender But if hee saith hee doth surrender into the hands of the Lord to the use of I. S. if the Lord will thereunto agree this is a good Surrender whether the Lord will or not If the Tenant will Resigne his Interest in the Court into the Lords hands therewithall for the Lord to doe his will this is a good Surrender if it be accepted If a Coppy-holder will say he will bee no longer the Lords Tenant though these words bee recorded yet this is no good Surrender If a Coppy-holper for life take a new Estate for life by Coppy this is a surrender of his first estate But if a Coppy-holder for life will take a Lease of the same by Indenture for life this is not a good Surrender of the Coppy-hold Quaere If a Coppy-holder commeth to the Lord and telleth him that for the preferment of his Sonne in marriage with such a mans daughter his will is to give his Land presently to his Sonne and desireth the Lord that he would be contented therewith this is no good Surrender But if he had said these words in the Lords Court and the same recorded or found by Homage as a Surrender and so presented then this had beene a good Surrender without any other words of Surrender THAT A COPPY-HOLDER must bee admitted Tenant and what shall bee said a good Admittance of a COPPY-HOLDER IF a Coppy-hold descend unto a married woman and her Husband take the profits thereof and suffer a Court day to passe without admittance of his Wife and then the Wife dyes the Husband shall not be Tenant by the curtesie but in the 12. Eliz. Dyer 291. 292. it seemeth that the contrary should be the better opinion An entry before admittance is no forfeiture without an especiall custome pleaded but the heire may make a forfeiture for non payment of the Rent as the Custome was there pleaded before admittance If a Coppy-hold be Surrendred unto the use of a stranger upon condition and the condition be broken the party that made the Surrender may reenter and bee a Coppy-holder to all Intents without any new admission for he did depart with the Land but upon a condition Also if a Surrender of a Coppy-hold bee made to the use of a stranger for Life and the Lord makes a grant thereof to the same stranger in Fee this shall not binde the heire of the Tenant but that hee may enter after the death of the grantee for hee tooke the Land by the Surrender and not by the grant made by the Lord for the Lord is but an instrument for the conveyance of the Land for if I make a Surrender unto the Lord ea Intentione that hee shall grant over unto such a man if the Lord will not grant the same I may then reenter but the stranger hath no meanes to enforce the Lord to grant the same over unto him but hee may maintaine Trespas against the the Lord if hee doth suffer mee to reenter and this is the opinion at this day The Lord of a Mannour hath that prerogative in his Coppy-holders that no stranger can bee his Tenant thereof without his speciall assent and admission and for that cause a Coppy-holder shall not bee lyable to any executions of Statutes or recognizances neither shall be Cassets in debt or Formidon neither are conteyned in any the Statutes afore named for if it were then should the Lord be forced to have a Coppy-holder whether hee would or no which is against the nature of a Coppyhold And therefore a stranger can never enter though a Surrender made to his use bee accepted except hee bee admitted Tenant but otherwise of the heire for hee may eater and take the profits before the Admittance after the death of his father Admittance may be three manner of waies an expresse admission by the words entred into the Court Role viz. unde admissus est Tenens or by acceptance or implication as if the Lordwill accept the rent by the hands of a stranger third by admitting one Copy-holder in some cases the Lord shall admit another by implication to some purposes and to these three may bee added a fourth which is by the entry of the Sonne after the death of his Father and the Tenant in Dower after the death of her Husband which is Lawfull without admission till the next Court and then they must pray to bee admitted c. If a Coppy-holder doe surrender his Land to the use of I. S. and the Lord doth grant the same to I. S. accordingly and thereupon hee enters yet hee is no good Coppy-holder till hee bee admitted But if I. S. appeareth at the Lords Court and passeth on the Lords homage or the Lord accepts his Rent or his Fine
Common of estovers in another Mannour notwithstanding that the other Tenants have not such a Custome and it was good by the advice of all the Justices WHERE THE TENANT may cut downe trees destroy houses by Custome and such like Customes c. FOurth Ed 6. Justice Dalisons Reports Sanders and divers Justices Tenant by Coppy of Court Role may prescribe to have Wood growing upon the Land Montague there is such a custome and so used in the Counties of Mid. Northland and other places Browne it hath beene heere agreed of late that Tenant by the Custome may prescribe to suffer their houses to fall and to destroy their houses so also here wherby this is a good Custome Montague I have heard a Fable that a Tenant by the Custome may digge in the one part of his house and burne the other part by the Custome But if you will agree that the Tenant by Custome shall have the Land against the Lords Will to him and his heires by the Custome why then may they not by the Custome cut downe Wood Sanders I agree to none of your cases Montague surely in the Chancery it will bee over-ruled against you without doubt and it is necessary that an Act of Parliament bee made upon it WHERE AND HOW Tenant by Coppy may make a Ioynture to his wife of the same Land A Stranger brings a writ of right against the husband and wife in the same Court where the Land is by plea and the husband and wife doe appeare and the demandant doth Count against them and the husband and wife doe defend and say that they have more right then the demander and offer to try it by Battell and the demander and Tenants doe Imparle at which day the demander appeares and the husband and wife make default whereby finall judgement is given against them and at the same Court the Recoverer Surrenders the same Land into the Lords hands to the use of the Husband and Wife and the heiros of their two bobodyes begotten and it was said that this assurance hath beene vsed 1. Ed. 6. Dalisons reports Pell et Hikden Trin. 36. Eliz. Rot 547. on the Kings bench Tenant in Tayle the remainder in Fee Tenant in Tayle Surrenders to the use of I. S. in Fee I. S. suffers a Recovery and vouches the Tenant in Tayle who vouches the common vouchee and by speciall Verdict it was found that there was never any recovery before in that manner and it is not yet adjudged Gawâ—y and Clinch that the recovery can not be a Barre for warranty can not be anexed to an estate at will also he shall not recover in value because of the estate at will Fenner and Popham chiefe Justice to the contrary and that warranty may be annexed to Coppy-hold Land though it bee an estate at will of the Lord but as it is an estate in Fee performing the services and duties the Law will account them Tenants in Fee Also recovery in value being but a fiction in Law le common vouchee shall bee accounted to have the Land in value of the Coppy-hold within the Mannour and the Vouchee 23. Hen. 8. Br. Recovery in value 27. that such a Recovery is used in ancient demeasne upon a writ of right and Voucher over and that of a Free-hold there yet enquire of such a Recovery upon a plaint there of Land of Base Tenure for that cannot bee warranted c. But in the Common Bench in trespasse brought by Comb against Pears and Turner Mich. 36. et 37. Eliz. Rot. 14. Bromeley Brittain Hall in Essex Tenant in Tayle of a Coppy-hold suffers a recovery with Voucher where no recovery was before the lesser enter by the Court that cannot be but he shall have a Formdone in discender for the recovery in Court Baron cannot availe because a warranty cannot bee anexed to an estate which is at the will of the Lord. Also there can bee no Recovery in value first because there can be no recovery in value of Lands out of the Mannour and the Coppy-land is at the Lords wil Secondly Coppy-hold Land is granted by Coppy only and if by the Recovery the Tenant may have it the course and Custome of the seignory would be destroyed which shall not bee Thirdly the Lord shall loose his fine and Fealty also for the Coppy is admissus est tenens c. et Dat. Duo de fine pro tali ingressu c. et fecit fidelitatem Fourthly et Fiftly Ph. et Mar. A Coppy-holder Surrenders to the use of his wife for Life the remainder to the right heires of the husband and Wife the Wife dyes the Husband survives The question is who shall hold the Land and it was said that if the Husband had no Issue by that Wife then his Heire shall have it CERTAINE COPPY-HOLD cases reported in a cer taine BOOKE BUt it was said there that if the Wife had Issue by another Hâ—sband it was there doubted But it was holden by the better opinion in Dier that the Husband and his heires shall have the Land yet if the Husband had first two sonnes the heires of the Husband and the heires of the Wife shall have the Land in Common after the decease of the Wife and for proofe thereof hee puts this case If land bee given for Life the remaynder to two men and their heires they cannot have one heire in the case if the Tenant for Life dye before them in remainder they shall bee Jâ—â—â—etennants and the Heire of the surviver shall have all But if none in remainder bee in life when the Tenant for life dyes then the heires of them in the remainder shall hold in common Thirty seventh Henry the eighth A Coppy-holder to the intent to make an assurance to his Wife suffers another to bring a Writ of right in the Coppy Court and they joyne the Battell and at the day the Husband and Wife make default and finall judgement was given and after the recoverer Surrenders the same Land into the Lords hands to the use of the Husband and Wife and their heires and a good assurance pur Cur. A Coppy-holder makes a Lease at Will to another who commits Waste which is a cause of Forfeiture the Lessor brings an Action upon the case against the Lessee By Walsh Weston and Dier the Lord may enter and have Trespasse against the Lessors his Tenant and therefore it is reason that hee shall bee recompenced But the Lord shall have a speciall Writ of Travers and not vi and armis because the entry was lawfull 8. et 9. Eliz. ibid. The Lord Dacres enters upon his Coppy-holder and leaseth it to a stranger for yeares the Lessee enters and was ejected by the Coppy-holder and hee brings a Writ of Electione firme The Coppy-holder pleads that the Lands are demiseable per Custome and so they were at issue and hee shewed in evidence a Coppy made 13. Henry the eighth by which a Tenant had surrendred the Lands
certain beginning and of certaine ending and is not directed by mans memory wherein is ment limitation of time and not limitation of estates If Lands have been demised by Coppy by the space of 60. yeares and yet there be some alive that remembreth the same occupied by Indenture this is not a good Coppy-hold And if Lands have beene demised by Coppy but 40 yeares and there is none alive that can remember the same to bee otherwise demised This is a good Coppy-hold for the number of yeares makes not the matter but the memory of man And it is not 60. 80. or 100 yeares that maketh a Coppyhold or a custome though it makes a limitation But such certaine number of yeares makes onely a likely-hood or presumption of a prescription that is that it commonly happeneth not that any mans memory alive can remember alone such a number of yeares But if any chance to be alive that remembreth the contrary then such prescription must give place to such proofe Custome hath certaine speciall vertues in it selfe which for the more estimation thereof I will shortly shew according to certaine precepts and principals allowed by al Lawes both by the Law of God the Law of of Nature and the Law of Nations and by the private Law of every Countrey as by the Law of GOD it is said Si quis videtur contentiosus esse nos eiusmode Consuetudinē non habemus nec ecclesia Dei which proveth that the Scripture and the Church of God do atribute some what to good customes though not to evill And by the Law of Nature Consuetudo est altera natura And by the Law of Nations Consuetudo est optima legum interpres And by the Lawes of this Realme Princes at their Coronation are sworne as well to keepe the custome of this Land as the Lawes of this Land which Law doth attribute so much to custome that sometimes it is admitted to derogate from the Custome Law for Consuetudo bona de clausausitata et approbata privat Communem Legem WHEREOF CVSTOME doth Consist CUstome although it doth chiefly consist of continuance of time and usage yet it doth further require seven other necessary properties accident for the maintenance of a good Custome Which are these FIrst it must be reasonable as it appeareth 2. Ed. 4. 24. SEcondly it must be certaine as appeareth 3. Ed. 3. 13. Ed. 3. 4. Dum fuit infra aetatem 3. 14. Ed. 3. 4. 14. H. 4. THirdly it must bee according to Common right 42. Ed. 3. 4. FOurthly it must bee on good consideration 5. Hen. 7. 9. 42. Ed. 3. FIftly it must bee compulsary 42. Ed. 3. Avow 66. SIxtly it must be without prejudice to the King 3. Hen. 6. Custome Fits Hen. 2. 22. Ed. 3. Prescription 40. SEventhly it must bee to his profit that claimeth the same 31. Ed. 3. Prescription 40. et 28. Usage is the efficient cause both of Custome and Prescription for without usage there can bee neither Custome or Prescription for even as the minde is to man so is usage to Custome And as you see there bee divers varietyes of mindes in men so are there many varieties of Customes as you see varieties of Countries and yet all men perfect and all Customes perfect some say that have their mindes affected according to the Constitution of their bodies And so have Countries their Customes according to the Constitution of the place as in Kent and in North Wales because those Countries have beene most subject to forraigne invasions that euery man there may bee of power for resistance The inheritance for the most part descend in gavell kind viz. to every brother alike and in other middle parts of the Realme for whom government Least equalty is best The inheritance wholy descendeth to the eldest brother And in Borough English which is in divers Boroughs because their substance commonly is Lands and in such Townes Lands may bee the better preserved then goods therefore their youngest sonnes shal onely have their Lands and as it is in those great parts of the Realme so it is in divers private parts and Mannours and divers private and special customes As some Mannours have Coppy-hold of inheritance some for life or liues in some Manour the Copy-holders surender in one manner and in some in an other sort In some the Fine is Arbitrable And in some Certaine et sic in similibus The usage of every Custome doth not rest to be yearely daily or continually used but as the equality and the nature of the thing whereof the Custome is doth require as Custome Harryots when they fall of Shacts and Foldage in their season of Common Estovers in their time and for Coppy-holders whose Fines are certaine yet at one time to pay a greater Fine then at an other and all these are good Customes though they cannot bee used at all times for Customes may bee sometimes used sometimes not used sometimes altered and sometimes not and therefore in Custome you may see there is user non user Abuser and interuser User is when according to time and occasion a Custome is used Non user is when for want of time and occasionor through negligence or forgetfulnesse a Custome is not used Abuser is that which user doth nourish a Custome and non abuser tolerate a Custome so doth abuser destroy a Custome and yet in some cases a Custome may bee sometimes used in one sort and sometimes in an other And yet a good Custome if there bee good considerations of the exchanging thereof all times and this I call enteruser If there be a Coppy-hold of an Ancient demeasne and this Land is forfeited to the Lord by waste and thereupon a seisure awarded thereof and yet the Lord doth suffer the Tennant still to occupy it by the space of 20. yeares without receiving any rent for the same and after grants the said Land to the Tennant by Coppy This grant is good and a good User of the Coppy hold But if after the said seasure awarded an Estranger had entred and Disseised him of his Land and made a Feofment in Fee thereof And after the Lord re-entreth and grants the same againe by Coppy unto the first Tenant this grant is not good by reason of the User of this Land If the Lord have used at the admission of his Coppy-hold Tenants sometime to take for a Fine two-pence or sometimes fourepence for an Acre somtimes twelve pence an Acre this User is so uncertaine that it maketh the Fine arbitrable at the Lords will If the Lord of a Mannour have used time out of minde to admit his Coppy-hold Tenants without Fine this usage shall binde the Lord as well as a Fine certaine If the Lord have used to have certaine work-dayes of his Tenants and that hath not been used by the space of twenty yeares last past yet that Non-user is no discharge to the Tenants so that there be any in life that can remember the