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
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
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
Custome to maintaine Coppy-holders It is to bee noted that although a Mannour of his proper ought to consist of demeanes and services yet in some cases that may bee a Manour and maintaine Coppy-holders and a Court Baron by usage and custome which otherwise by Common Law is no Manour nor cannot so be called c. A man seized of a Manour whereunto bee divers free Tenants divers Coppy-holders and divers speciall Customary Tenants and the Customary Tenants do hold to give atendance on the Free holders at the Lords Court All the Free Tenants dye saving one the Lord doth bargain and sell the Manour to an Estranger This is now in respect of the Free Tenements a Tenure and no Manour in respect of the Coppy-holders both a Manour and Tenure and in respect of the Customary Tenements neither Manour nor Tenure If divers do hold Lands to dine with the Lord every Sunday in the yeare this maketh neither good Tenure nor Manour But if they hold to wait on the Lord every Sunday at dinner and to dine with him this maketh a good service but no good Tenure If divers doe hold Lands by Coppy of the Mannour of D. and so have done time out of minde and by the like time there hath beene no Free holders to the said Mannour Although this be no Mannour in his proper nature yet by usage it is a good Mannour to maintaine Coppy-holds A man seised of a Mannour which time out of minde hath beene called by the name of the Manour of S. and doth demise the same by the name of the Mannour of S. this is good If a man seised of a Mannour whereto be six Free holders and six Villaines Regardants The sixe Free holders dye having Issue sixe daughters the Villaines enterrary with them yet the same is a Mannour and the villaines thereto regardant If a man seised of a Mannour whereto hee hath Leet and wrecke of the sea by prescription all the Tenancyes Escheate yet the Leete and the wrecke still remaine and it is a Mannour to that purpose If divers doe hold Lands by prescription to finde the Lords mans meat and hounds meat when hee commeth to hunt the Fox in the said Lands this maketh a good Tenure but no good Mannour If divers do hold Lands to doe suit and service at the Lords Court This is most properly such service as maketh a Mannour but if it be to doe suit and service at the Lords Couri when it pleaseth themselves this is neither Mannour nor Tenure If divers doe hold Lands to repaire a High way within a mile compasse without the bounds of the Lord of the Mannour this makes a good Tenure but no Mannour But to repayre or mend the wayes within the Precinct of the Mannour is good to enlarge the Mannour If divers doe hold Lands to pray for the prosperous Estate of the Lord and his Heires this maketh a Tenure but no good Mannour If divers doe hold Lands of the Lord to wayte upon him at twenty dayes warning twenty miles distant from the Mannour this maketh a good Service but no good Tenure But if it be to wayte upon the Lord within the sayd Mannour by certayne space this maketh both a good Tenure and a good Mannour If divers holde Lands to beate or kill the Lords Tenants that shall doe Trespasse on the Lords Demeasnes this is neyther good Tenure nor good Mannour But if it be to beate and kill the Kings enemies that shall doe so this maketh both a good Tenure and a good Mannour If Divers hold Lands by Prescription to do Service to the Lord to his Court of the sayd Mannour twenty miles distant at a place certaine This is both a good Tenure and a good Mannour But if it be to do Service to his Court at another Mannour this without Prescription cannot be severance from the first Mannour If Divers doe hold to come to the Lords Court and there to doe nothing this maketh neither good Tenure nor good Mannour But to come to the Court though not to be of the Homage yet to offer Amersements or make Certificates or any other Service to the Lord this maketh a good Tenure and a Mannour If any do hold Lands to do Divine Service before the Lord and his Tenants in the Court-house before the beginning of every Court this maketh both a good Tenure and a good Mannour What shall be sayd a good Custome to be able to maintaine Coppy-holds A Custome to make a Coppy-hold must be of necessity in the same Mannour where the sayd Coppy-holds are so granted viz. That the same Lands are and time out of minde haue beene onely Demised and Demisable by Coppy of Court Role for otherwise the Lord cannot grant it by Coppy because hee cannot beginne a Custome at this Day But if it have beene by like time granted by Coppy though sithence it came to the Lords hands yet if the Lord never Demise the same by Free Deede nor otherwise but by Coppy then he may well grant agayne the same by Coppy for it is neyther the person of the Lord nor the occupation of the Land that eyther maketh or marreth the Coppy-hold But onely the usage and manner of Demising the same for the prescription of a Coppy-holder consisteth neither in the Land nor in the Occupier but onely in the Usage of the Demising THE DIVISION OF CVSTOMES viz. Customes Prescriptions Vsage and Limitation THese foure though they be in some confounded together and indeede are of great Affinity yet there be divers differences in their severall natures betweene them Custome is where by continuance of time a Right is obtayned concerning divers persons in common Prescription is where by continuance of time one particular person obtayneth Right against an other Vsage is by continuance of time the efficient cause of them both Limitation is where a right may be obtained by reason of a non claime by the space of a certaine number of yeares differing in the Accoumpt of time from custome and prescription But what measure of time shall make a Custome divers have differed in opinion some judging the same to bee according to the Computation of yeares from the time of K. Ed. 1. untill the Statute of M. 1. which appointeth the limitation in a writ of right The accompt of which time unto the said Statute from the said K. time is 76. yeares others have thought a hundred years maketh a prescription because in old time an hundred yeares was accompted a Fee simple But the true measure thereof according to Master Littletons Rule is where a Custome or Usage or other things have beene used so long as mans memory cannot remember the contrary That is when such matter is pleaded that no man then in life hath not heard any thing nor know any proofe to the contrary And by this it appeareth that Customes and prescriptions resteth onely in the memory of man limitation consisteth onely of a certaine time which hath a
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
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