Jurisdictions, Part 98 – Part 101
Cuſtomes.
It is ſayd that the fifth ground of the Law is particular Cuſtomes, and for that Cuſtome is inquirable by the third Article, Doctor and Student, fol. 20.
And for that it is expedient to ſay ſome thing of Cuſtomes, and firſt to write ſuch Cuſtomes to you, which I have ſeene allowed between Copy-holders within Mannours, where I have been at Courts.
FIrſt, Heire.Cuſtome of ſome Mannor is, that the youngeſt Son, or Daughter of the firſt Wife, being marryed a Virgin, ought to inherite.
Cuſtome of ſome Mannor is, Dower.That the Woman being eſpouſed a Virgin, ſhall have all the Copy-hold, whereof the Husband dyed ſeiſed, for her frank bench; but the Husband may alien all or part, without the Wife, and then ſhee cannot claime Dower.
Cuſtome in ſome Mannor is, Heire.among Copy-holders, that the youngeſt Son ſhall inherite, as in Borrough Engliſh, and if he have no Sonne, his younger Brother, as at Edmonton.
Cuſtome of ſome Mannor is, Heire.that all the Sons, and all the Brothers ſhall inherite together, as in Gavel-kind at Iſlington.
Cuſtome of ſome Mannor is, Heire.That if the Tenant dyes ſeiſed of five Acres or leſſe, then the youngeſt Son ought to inherite, but if it be above, then all the Sons, as in Gavell-kinde, ought to inherite.
Cuſtome of ſome Mannor is, Clivenor.If a Copy-holder ſurrender his Land to the uſe of a ſtranger, that before the ſtranger be admitted, Proclamation ſhall be made in the Court thereof; and if the next of the blood will come in, or Clivenor Land mark, thoſe next adjoyning to the bargaine from the Eaſt of the Son, and will pay ſo much for the Land ſurrendred, as hee which made the bargaine ought, together with all his coſts, which had the Land ſo ſurrendred, and then the Bargainee ſhall make Oath in Court what he payd, and that ſhall be payd him forthwith in Court, and then the next of blood, or Clivenor, which pay that ſhall be admitted, and ſhall have the Land.
Cuſtome in ſome Mannor is, Where ſurrender is of Copy-hold made to him and his, that is an Eſtate of Inheritance in Fee by the cuſtome, though it be not to him and his heires; And in ſome Mannor it is to him and his in Villainage, and yet it is a good Eſtate of Inheritance by the cuſtome.
Cuſtome of ſome Mannor is, That ſurrender may be made into the hands of the Bailiffe in the preſence of two Tenants witneſſing that; and in ſome Mannor in the hands of two Tenants, to the uſe of him to whom, &c. And in ſome Mannor, in the hands of one Tenant to the uſe of him which ſhould have it; and all theſe are good cuſtomes, and allowed.
Cuſtome of ſome Mannor is, Dower.that the Wife ſhall have no Dower, nor the Husband ſhall not be tenant by the curteſie: And the cuſtome in ſome Mannor, that ſhe ſhall have the third part of the Rent, and not any Land for her Dower, as at Buſh.
Cuſtome in ſome Mannor is, Surrenderthat ſurrender may be made into the hands of a tenant, in the preſence of other perſons, to the uſes, &c. and is good.
Tenant at will by the common Law, Waſte.may cut Trees to repaire his Houſes, and alſo may take Houſe-boot, Hedge-boot, and Plough-boot, and all this Tenant by Copy may doe: And by the cuſtome in diverſe Mannors, copy-holder may cut his Trees and Wood, and ſell it at his pleaſure; and alſo to ſuffer the Houſes to decay, and yet it is not forfeiture, as it is at Iſlington.
Cuſtome of ſome Mannor is, Leaſe.that copy-holder may let that by Indenture for three yeares, without licenſe of the Lord, and in ſome for nine yeares, and in ſome Mannor for more, and in ſome Mannor hee may let from three yeares to three yeares, to the terme of one and twenty yeares, and is no forfeiture.
Cuſtome of ſome Mannor is, Harriot.that where the copy-holder is Inheritable, that the heire ſhall chooſe the beſt Beaſt, and the Bailiffe of the Lord ſhall ſeiſe two of the next beſt Beaſts, and for a Cottage, two ſhillings in Silver, for Harriot ſhall be payd and no Beaſt.
Cuſtome of ſome Mannor is, Fine.to pay ſix ſhillings eight pence for a Harriot, and no Beaſt.
Cuſtome of ſome Mannor is, Ward.that a copy-holder pay but one penny for a Fine, though there be a hundred Acres, or more; and in ſome Mannor, ſix ſhillings eight pence for every dwelling Houſe, and alſo for every Acre ſix ſhillings eight pence, and for every Cottage ſix ſhillings eight pence, and alſo ſix ſhillings eight pence for every Hampſell; that is, an ancient Houſe or Cottage decayed, ſix ſhillings eight pence: And in every Mannor the Fine is uncertaine, but yet the Lord there ſhall not take more for his Fine, then hath heretofore been taken for a Fine; and if he doe otherwiſe, the remedy for the copy-holder, is in the Chancery againſt his Lord.
Cuſtome of ſome Mannor is, that if copy-holder dyes, his heire within age, the cuſtome in moſt Mannors is, that the cuſtody ſhall be committed by the Lord to the next of blood, to whom the Land cannot deſcend: And in ſome Mannors, the Bailiffe of the Lord ſhall have the cuſtody, and render the heire an account at fourteene years of the profits; and by the cuſtome in ſome Mannor, at fourteene yeares, the heire may chooſe to him a Guardian.
Cuſtome in ſome Mannor is, Workmen.to have certaine dayes of labour, in harveſt for a day or two dayes; and in ſome Mannor he ſhall pay foure pence for every day labour of that.
Cuſtome of ſome Mannor is, Releife.that he ſhall pay for Releife upon a diſcent, but halfe that which is due by common Law, as if he hold by ſix pence, he ſhall pay but three pence for Releife; but yet he ought to pay that releife by the cuſtome: Alſo if he come in by Purchaſe, he ought to pay in the like manner, halfe his Rent as afore is ſayd; that is to ſay, three pence, where his Rent was ſix pence.
Cuſtome of ſome Mannor is, to pay but one penny for releife, and not more nor leſſe, though his Rent be ten ſhillings.
Cuſtome in ſome Mannor is, Dower.that if a man marry a Mayd, and dye ſeiſed of copy-hold, this Wife ſhall have all the Land during her life, for her Dower; but if hee marry a Widdow, and dye ſeiſed, ſhee ſhall have no Dower.
Cuſtome of ſome Mannor is, that if one were no copyholder of that Mannor before, and purchaſe Lands, at firſt the Fine is arbitrable and granted at the will of the Lord; but he nor his heires after ſhall pay no Fine, but ſhall be admitted free, without paying Fine for all the Lands which he after purchaſeth within the Mannor.
If a man let to three for life, to have ſucceſſively, yet this is a Joynt Eſtate, and (ſucceſſively) is void; but by cuſtome of copy-hold (ſucceſſive) holds place, and one ſhall have it after the other, 30 H. 8. tit. Leaſes 54.
And note that you doe not ſay, as many uſe to ſay, that there is ſuch a cuſtome, when they ſee the Law to be contrary to their intent, as diverſe Stewards doe, when for favour that they beare to one party, will ayde him by cuſtomes when there is no ſuch cuſtome to helpe him.
And I have heard a Steward ſay, By the cuſtome of a Mannor a Wife is dowable, and by the cuſtome that ſhall be aſſigned by the Homagers, without plaint in nature of Dower againſt the Tenant of the Land, and without anſwer of the Tenant, and without any proceſſe made againſt him, contrary to Forteſcue, fol. 85. which is, That none is to be ſued but by the Law: And the caſe was this, That the Husband before that he tooke a Wife, made an Eſtate for life, reſerving Rent, and after he took a Wife and dyed, ſo that by the Law the Wife is not Dowable of the Land; much more, ſhee ſhall not be aſſigned there by the Homagers; but ſaith the Steward in ſuch a caſe, ſhee is by the cuſtome of this Mannor dowable in this caſe; and ſuch blinde and unreaſonable cuſtomes are alleadged many times amongſt copy-holders, where there is no Preſident nor uſage in this caſe to be ſhewed.
But you ought not to allow any cuſtome, but that which hath been uſed from time to time, and from time out of minde, and there ought to be Preſidents in the Court-Rolls, or good proofe of that to be ſhewed to the Court accordingly, otherwiſe it is not to be allowed for a cuſtome.
And for that, that you ought to note, what cuſtome ought to have lawfull beginning, as might take lawfull effect by Grants at the beginning, for if it be againſt common right and reaſon, it is not good; and for that you ought to regard theſe Grounds and Cuſtomes.
FIrſt, That it be reaſonable, 2 H. 4. tit. 10. And for that cuſtome that no Tenant of the Mannor, put in his Beaſts, to uſe his common in Feilds ſowed, after the corne is taken off, till the Lord hath firſt put in his Beaſts, is not good; for it may be the Lord will not put in his Beaſts, and then the Tenants ſhall looſe their profits.
Alſo that it be according to common right, 42 Ed. 3. fol. 4. Preſcription of the Sheriffe, that the Tenants of the place, ought to give to the Sheriffe for eaſement, for reward at the Turne of the Sheriffe, halfe a Marke, and this is againſt common right, for every gift cometh upon his liberality, and at the will of the giver; and for that it is not good; and alſo ſaith, that the Sheriffe cannot preſcribe.
Alſo that it be upon good conſideration, 42 Ed. 3. fol. 4. In the caſe next before, where the Sheriffe preſcribes, for that that there is nothing which toucheth the King, of which he is charged in account, it is not good, for there is no conſideration: And as 5 H. 7. fol. 9. preſcription, that if any paſture Sheep upon his Land by day, that hee may have Foldage of them in the night upon his Land, it is good, for it is with conſideration.
And you ought to note, that preſcription, cuſtome, and uſage, are as Brothers, and yet ſome thing they differ in their natures, for Preſcription is, when by continuance of time out of memory, one particular perſon hath particular right againſt another particular perſon.
And cuſtome is, where by continuance of time out of memory, one right is had concerning diverſe perſons; and uſage is, by continuance of time, the efficient cauſe of them both, and uſage is the life of Preſcription and cuſtome; for Preſcription and cuſtome have their being by uſage of time out of mind, &c.
Cuſtome or preſcription that every one which breaks the Lords pound ſhall pay three pound nine pence, is not good againſt a Stranger to the Lord, but that every tenant which breakes the pound ſhall pay three pound nine pence to the Lord, is good, for the Lord may give the Tenements of his Tenant to hold by ſuch, &c. 11 H. 7. fol. 14. So that at the beginning the Lord may create theſe cuſtomes aforeſaid amongſt copy-holders.
Cuſtome to preſcribe to have uſed fold-gate in the night for paſture in the day, is good, for it is (one for another) and it is with common right, 5 H. 7. f. 9.
Cuſtome that the Tenant of time out of minde, hath uſed to pay ſo much for the Marriage of his Daughter, is good 43 Ed. 3. and 6. but Littleton fol. 46. contrary.
Cuſtome or preſcription againſt common Right, is not good, and for that, that it hath been uſed in Leet, that if the petty twelve preſent falſe, and the other twelve inquire of that, and finde that falſe, ſhall be amerced, is not good, the ſame Law for the Lord of the Leet, which hath no Land to preſcribe to be Lord of Waſte, 9 H. 6. fol. 44.
Cuſtome or preſcription of folding Sheep in the night gathered to the Fold, is not good, unleſſe it be as above for their paſture, 46 Ed. 3. fol. 13.
Cuſtome or preſcription that one may keep the diſtreſſe till he be ſatisfied at his Will, is not good, for it is againſt common right, Lit. fol. 46.5. H. 7.9.
Cuſtome or preſcription, that one ſhall have the Land to plow and ſow, and when the Corn is carryed, another may have that as his ſeverall, is good, time of Ed. 2. Tit. preſcription, 55.
Cuſtome or preſcription to have Toll through, which is in the high-way is not good, for it is againſt common Right, but to have Toll travers, is good, 22 Book of Aſſiſe, 58.
Cuſtome or preſcription to have Warren in his Signiory Lands is good, but not of Lands which are not held of him, 3. H. 6.13.43. Ed. 3.13. and ſee 44 Ed. 3.13.
Cuſtome is good which is not againſt the Law of Reaſon nor the Law of God, as cuſtomes of Gavelkinde, and Borough Engliſh, and Doctor and Student, fol. 20. B.
Cuſtome that every Tenant of the Mannor, ought to pay two Markes for Releife, hold they more or leſſe, is good, 40 Ed. 3. f. 6.
Cuſtome that the Tenants of the Mannor time out of minde, have uſed to chooſe a Beadle for them, to gather the Lords Rents, is good, 44 Ed. 3. fol. 13.
Cuſtome that none of the Town of D. ſhall put in their Beaſts into the Feild after the corn taken off, untill the Feaſt of S. Michaell is a good cuſtome of the Town, after 46 Ed. 3. fol. 24.
But cuſtome that none ſhall put his Beaſts into the Feilds after the corn ſevered and carryed, before the Lord put in his Beaſts is not good, for paradventure the Lord will never put in his Beaſts, 2 H. 4.24.
Cuſtome of the Town of Barton, or of a Mannor, that a Wife ſhall have all the Land of her Husband for her dower, or a halfe, or fourth part, is a good cuſtome, 2 Ed. 4.17. and 21 Ed. 4. fol. 64. by Choke.
It is held that cuſtome, throughout the whole Kingdome is common Law, and one cannot preſcribe that it is a cuſtome throughout the whole Kingdome, but it is a cuſtome in ſuch a City or ſuch a County, 34 H. 8. Tit. cuſtome 59.30 Ed. 3.25. 2 H. 4. fol. 18. cuſtome of County, 21 Ed. 4.54.
Cuſtome of the Town which is no Burrough nor corporation allowed there, but ſee, 4 Ed. 3.38. in a reaſonable part, and ſee 21. Ed. 4. f. 53. and 54.40 Book of Aſ. 27. and 45 Aſ. 48. againſt the cuſtome of the Villiage.
That he hath been by preſcription the keeper of a Wood, and cuſtome to have of every comer a meaſure of work, or three pence, and of every one which hath a Gate into the Wood, a Hen is a cuſtome allowed, 11 H. 6.2.
Cuſtome or preſcription to have Houſe-boote in the Lords Wood, is good, but not to have Wood to ſell, 11 H. 6. f. 11.
Cuſtome that within the Mannor of D. the Wife ſhall have the whole Land of her Husband in Dower, whileſt he is unmarried, and if ſhe marry, that ſhe ſhall forfeit that, is good and allowable, 21 Aſs. 11.
Cuſtome that a Woman covert may demiſe and ſurrender her Copy-hold to the uſe of her Husband, this cuſtome is not allowable; but cuſtome that an Infant at his age of diſcretion may ſurrender his copy-hold, that is good; but contrary of an Infant within age of diſcretion to make a ſurrender.
21 H. 7. fol. 26. Lord to preſcribe that every Tenant of his Mannor ought to Impound diſtreſſe▪ taken within his Mannor, in his Pound, is not good, for he may Impound in his owne Land.
8 Ed. 4. fol. 19. Thoſe which are Fiſhets in the Sea, may preſcribe to goe upon the Land adjoyning to the Sea to Fiſh, for that is for the Common wealth, but to digg to fix the Stakes to dry their Nets, is againſt common right, and is not good.
21 Ed. 4. tit. 50. Cuſtome to turne his Plough upon the head-land of another, is a good cuſtome.
40 Edw. 3. fol. 9. Cuſtome to pay to the Lord five Marks for Releife, and not more, hold he more or leſſe, is good.
44 Ed. 3. fol. 13. Cuſtome that the Tenants ought to chooſe a Beadle amongſt them, to geather the Lords Rents, is good.
2 Mar. tit. Preſcription, B. 100. Cuſtome may be alleadged, where there is no perſon that may preſcribe, as Inhabitants cannot preſcribe, but alleadge cuſtome there, to have Common in D. for one goes with the perſon and another with the place; and preſcription with the perſon, by 21 H. 7. fol. 13. that is, That all the Tenants have uſed to pay after their death a Harriot, is not good, but that the Lord hath uſed to have after the death, &c. he may preſcribe.
18 H. 8. fol. 2. Inhabitants, by Fitzherbart, cannot preſcribe to have Common; but the Lord may preſcribe for him and his Tenants, &c. of time out of minde, &c.
7 Ed. 4. fol. 24. It ſeemes that Inhabitants cannot preſcribe to Intercommon, becauſe of Neighbourhood, but Inhabitants may preſcribe to have eaſement; that is to ſay, That they have a way, or other thing of eaſement, but not to take profit.
12 Ed. 4. fol. 2. It ſeemes by Cateſby, that the Inhabitants of D. may preſcribe, that they have uſed to pay but three pence for Toll.
18 Ed. 4. fol. 3. It is ſayd, that the Inhabitants of D. cannot preſcribe that they have uſed to have Common in anothers Freehold, but that they have uſed to have a way, 15 Ed. fol. 28. the ſame.
40 Ed. 4. fol. 18. Schollers of Oxford, and Juſtices of Aſſiſe may preſcribe to have principall of Houſes, notwithſtanding they are not corporate, for that they are for the Common wealth.
26 H. 8. fol. 6. Pariſhoners may preſcribe to chooſe two Church-wardens of a Church, every yeare, and good.
11 Ed. 4. fol. 2. Serjeants at the Law may preſcribe that they have uſed to be Impleaded by Originall, and not by Bill, and ſo preſcribe in uſage.
20 Ed. 4. fol. ult. Officer which hath his Office at will, may preſcribe, as Cheife Juſtice of the Bench, and other, which have uſed to give Offices.
22 Ed. 4. fol. 18. The Lord Chancellor of England, which is at will may preſcribe in uſage; that is, to preſent to all Benefices under forty Marks, which are in the Kings right; but he ought to preſcribe in his Office; that is, that all Chancellors, &c. and ſo many Juſtices preſcribe, 20 H. 6. fol. 9. the ſame.
12 H. 7. fol. 14. Officers may preſcribe that they and all the Officers whoſe Eſtate, &c. Have uſed and ſo forth, &c.
Note how one ſhall have a Rent or a thing which cannot be granted without Deed by preſcription.
13 Book of Aſſ. 4. Rent was recovered by Verdict in Aſſiſe, where the Aſſiſe found, that he and thoſe whoſe Eſtate he hath, were ſeiſed of time out of minde, and ſo note, Rent recovered by title of preſcription, and the party ſhews a deed by which he purchaſed the Rent, but not a Deed of the beginning of it.
Littleton fol. 34. ſaith, Such things which cannot be granted nor aliened, without Deed or Fine, a man which will have things by preſcription, he cannot otherwiſe preſcribe, but in him and his Anceſtors whoſe Heire he is, and not in him, and thoſe whoſe Eſtate he hath, for that, that he cannot have his Eſtate without Deed or other writing, which he ought to ſhew.
12 H. 7. fol. 14. One avows for that, that he and all thoſe whoſe Eſtate he hath in the Hundred have view of Frank pledge, and that by reaſon of ten Acres within that, he ought to make Suite at the view, &c.
22 Book of Aſſ. 53. Aſſ. One makes Title to Rent, that he and his Anceſtors, Lords of the Mannor of D. and thoſe whoſe Eſtate he hath, of time out of minde, have uſed the Rent, and this is good without ſhewing a Deed of purchaſe of that, being appurtenant to the Mannor.
11 H. 6. f. 14. To ſay that he is ſeiſed of a Meſſuage, and twenty Acres, and to preſcribe that he and all thoſe, &c. have uſed Houſe-boote and Wood to ſell, it is not good, to preſcribe to ſell it.
Cuſtome ſhall be taken ſtrictly.
Cuſtome of London is, that a Citizen and a Free-man may deviſe in Mortmaine, but a Citizen which is a forrainer, cannot deviſe in Mortmain, for it ſhall be taken ſtrictly, 5 H. 7. f. 10.
5 H. 7. fol. 41. Cuſtome that an Infant of the age of fifteen years may make a Feoffment, yet a Leaſe and Releaſe which mounts to ſo much, is not good.
22 Ed. 4. Tit. 17. Infant by cuſtome of Gavelkinde at the age of fifteen may make a Feoffment, yet he cannot make a Will upon the ſame Feoffment, for cuſtome ſhall be taken ſtrictly.
Perkins f. 83. Where the cuſtome is, that the Wife ſhall have halfe the Lands of her Husband for her Dower, yet ſhee ſhall not have the halfe of a Faire or a Bailiwick, for they are not Lands and ſhall be taken ſtrictly.
38 Aſſ. 18. By the cuſtome of London a Citizen may deviſe Lands which are within the ſame City in Mortmain, but not Lands out, and Forrainer cannot deviſe Land in London in Mortmaine.
Coſts againſt the Plaintiffe.
THat in every Court in treſpaſſe upon the Statute of, 5 R. 3. chap. 7. Debt, covenant by ſpecialty or upon contract, Detinue of Goods, account, action upon the caſe, or upon the Statute, for perſonall wrong ought to be remedied, if after appearance of the Defendant the Plaintiff be nonſuited or a Verdict paſſe againſt him, the Defendant ſhall recover his coſts, 23 H. 8. chap. 15.
If any be troubled by attachment or arreſted by Latitat, or in London, or in a Court which hath liberty to hold Plea, and no Count be put in within three daies after the Baile put in, otherwiſe appeares (unleſſe the Court of diſcretion gives longer day) the Defendant ſhall recover coſts and dammages, the ſame Law is if a Suite be diſcontinued after Count, or that the Plaintiff be non-ſuited, then the Defendant forthwith by diſcretion of the Court ſhall recover coſts, and the Statute gives Debt for the coſts, 8 Eliz. Chap. 2.
But one arreſted by Bill of Middleſex, ſhall not recover coſts though the Plaintiff do not count to be nonſuited.
If a matter paſſe againſt an Informer by Verdict or Judgment, the party ſhall have coſts, and ſhall have execution by a Capias to ſatisfie fieri facias, or Elegit, but theſe two laſt Statutes do not extend to a Court-Baron, 18 Eliz. C. 5.
22 H. 8. B. Tit. Coſts 25. in (quare impedit) the Plaintiff ſhall not recover coſts, for that the dammages are great, 35 H. 8. Tit. 258.
2 Ma. Tit. Coſts 23. Debt by Leſſor, if he be non-ſuted or bar'd, the Defendant ſhall recover coſts by the Statute, for it is upon a contract for Rent.
2 H. 7. f. 13. Account, the Plaintiff ſhall not recover coſts, but where the Defendant is adjudged to account, and pleads Barr, &c. It is otherwiſe.
9 H. 6. fol. 66. He ſhall not recover coſts, for that the dammages are tremble by the Statute, 14 H. 6. fol. 13. forcible entry the ſame.
In London by act of common Councell in treſpaſſe by force of Armes, and in all other Actions perſonalls, if the Plaintiff be non-ſuited, or a Verdict againſt him, and Judgment upon it, or Judgement upon demur againſt him, the Defendant ſhall recover his coſts by diſcretion of the Court, but if the Plaintiff ſue as Executor or Adminiſtrator, which is not upon his own act, the Defendant there ſhall not recover coſts, and yet treſpaſſe (by force of Armes) is not within the Statute, 23 H. 8. chap. 14. to have coſts.
Damages.
IT ſeems if one take my Beaſts, and after they return to me again, I ſhall have treſpaſſe for taking, but upon the evidence I ſhall not recover the value, though the value be in the Writ, 11 H. 4. fol. 23. 1 H. 6. fol. 8. 19 H. 6. fol. 34.
In what plaints Damages ſhall be recovered in Court-Barons, and in what caſes in Court-Barons and other Courts, and in what not.
In plaint in nature of
Aſſiſe of novell diſſeiſin,
Grandfather and Great Grandfather.
Entry by diſſeiſin,
Dower,
Nuper obiit,
Mortdanceſter.
Cozenage.
Replegiare.
Covenant.
Debt.
Action upon the Caſe.
Deceit and treſpaſſe.
Damages and coſts ſhall be recovered by the Plaintiffe.
Eight Marks were given in plaint of Land in Court-Baron, Plowdens Commentaries, f. 394. B.
If any avow for Rent, or doing damage, cuſtome, or ſervice, if the Plaintiffe be non-ſuited, or otherwiſe barred, then the Avowant ſhall recover damages and coſts, as the Plaintiffe ought: See 19 H. 8. fol. 8. & 12 H. 8. chap. 19. Raſt. tit. Avowry 1.