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justice_n	common_a	court_n	law_n	4,730	5	4.8738	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34802	Lex custumaria, or, A treatise of copy-hold estates in respect of the lord, copy-holder wherein the nature of customs in general, and of particular customs, grants and surrenders, and their constructions and expositions in reference to the thing granted or surrendred, and the uses or limitations of estates are clearly illustrated : admittances, presentments, fines and forfeitures are fully handled, and many quaeries and difficulties by late resolution setled : leases, licences, extinquishments of copy-hold estates, and what statutes extend to copy-hold estates are explained : and also of actions by lord or tenant, and the manner of declaring and pleading, either generally or as to particular customs, with tryal and evidence holder may recieve relief in the Court of Chancery : to which are annexed presidents of conveyances respecting copy-holds, releases, surrenders, grants presentmets, and the like : as also presidents of court rolls, surrenders, admittances, presentments, &c. / by S.C., Barister at Law.	Carter, Samuel, barrister at law.	1696 (1696)	Wing C665; ESTC R4622	239,406	434

pleading we say such Lands or Tenements are demised and demisable A tempore cujus contrarij memoria hominum non existit And yet this Rule fails in the Kings Case vide supra It was said by Rolls Chief Justice in Pilkington and Bagshaw's Case Stiles 450. That a Custom cannot be urged for a thing that had its beginning since the time of Richard 1. if a Record can be shewed to the contrary But what measure of time shall make a Custom many differ Some judge it from the time of Henry 1. to the Stat. of Merton Cap. 8. which appointeth the Limitation in a Writ of Right and others say otherwise And by the Statute W. 1. the Limitation was from the time of R. 1. and these are Limitations as to Writs but this is since altered by 32 H. 8. What shall be said time out of memory which is reduced to sixty years next before the Teste of the Writ But the true measure is Littleton's Rule Where a Custom hath been used so long that man's Memory cannot remember the contrary that is when such a thing is pleaded that no man then living hath heard or known any proof to the contrary for if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory of any man living yet it is within the memory of man and therefore regularly a man cannot prescribe or alledge a Custom against a Statute for that is the highest Record but affirmative Acts do not take away a Custom If Land hath been demised by Copy for fifty years and yet some alive remember the same occupied by Indenture this is not a good Copy hold And if Land hath been demised by 40 years by Copy and none alive can remember the same to be otherwise demised this is a good Copy But sixty or eighty or an hundred years may make a good Limitation Calthrop's Reading Coke Lit. 114 115. 2. Continuance Custom ought to have continuance without interruption time out of memory for if it be discontinued time out memory the Custom is gone As if a Copy-hold be let by the Lord for life or for years according to the course of the Common Law it shall never be demised as Copy-hold according to the Custom afterwards Consuetudo semel reprobata non potest amplius induci and as Continuance makes the Custom so discontinuance destroys it The Continuance for fifty years is enough to fasten customary Conditions upon the Land against the Lord And per Cur. Though the original Commencement and the customary Interest did commence 10 H. 8. from which time sixty years passed yet the seizure for a Forfeiture in the mean time interrupted utterly the Continuance from the time which might by the Law have perfected the customary Interest What shall be said an interruption of a customary Estate or not Within the time of forty seven years a customary Interest cannot be Attached upon the Land 3 Leon. 107. Tavernor and Cromwel If the Lord of a Manor is seized of an ancient Copy-hold for Forfeiture or by Escheat and let the same at Will without Copy for divers years this is not any interruption of the customary nature of the Land but that he may grant it again by Copy Ibid. Interruption If customary Land hath been of ancient time grantable in Fee and now of late times for the space of forty years the Lord hath granted the same for Life only yet he may if he please resort to his ancient Custom and grant it in Fee 1 Leon. p. 56. Kemp and Carter Customary Land within a Manor hath been grantable in Fee and it Escheats the Lord may grant the same to another for Life for the Custom which enables him to grant in Fee shall enable him to grant for Life and after the death of Tenant pur vie the Lord may grant the same again in Fee for the grant for Life was not any interruption of the Custom 1 Leon. 56. id Case 3. Certainty Custom ought to be certain for incerta pro nullis habentur 13 Ed. 3. Fitzh dum fuit infra aetatem 3. A Writ of Dum fuit infra aetatem was brought against an Infant the Tenant pleads a Custom That when the Infant is within such an Age as that he may count twelve Pence or measure an Ell of Cloth that then his Feoffment shall be good this Custom is adjudged void for the incertainty Why an uncertain Custom shall be void Now the Reasons why an uncertain Custom shall be void are 1. Because an uncertain thing may not be continued time out of memory 2. A man cannot prescribe in a thing which may not at the beginning be well granted and an uncertain thing cannot well commence by Grant And if Tenants of a Manor prescribe that they ought not to pay for a Fine to renew their Copy-hold Estates more than the Rent of two years but ought to pay the Rent for two years or less this is not a good Prescription for the uncertainty for sometimes they are to pay two years Rent and sometimes less 2 Rolls Abridg. 264 265. Green and Berry 4. Reason Custom must be reasonable therefore it must not be against common Right or purely against the Law of the Land as is Littleton's Case The Lord prescibes That there hath been a Custom within his Manor that every Tenant who marries his Daughter without Licence of the Lord shall make Fine c. This Prescription is void it is against the freedom of a Freeman who is not bound thereto by particular Tenure Alit if it be upon a special Reservation of Gift of Lands or Tenure in Villanage Lit. Sect. 209. So in Sect. 212. To prescribe that the Lord of the Manor hath used to distrain Cattel Damage feasant and to retain the Distress till Fine were made to him for the Damages at his will This Prescription is void for it s against reason a man should be Judge in his own Cause If the Lord will prescribe to have of every Copy-holder belonging to his Manor for every Court he keepeth a certain Sum of Mony this is a void Prescription because it is not according to common Right for he ought to do it gratis for Justice sake But if the Lord Prescribe to have a certain Fee of his Tenants for keeping an extraordinary Court which is purchased only for the benefit of some particular Tenants to take up their Copy-holds and such like this is a good Prescription and according to common Right Coke Cop. 81. But now to distinguish what Customs are unreasonable and what not observe these differences Every Custom is not unreasonable which is contrary to a particular Rule or Maxim of the positive Law For its a Rule Consuetudo ex certa causa rationabili privat communem Legem As the Customs of Gavel-kind and Burrough English are against the Maxim of descent of Inheritance and the Maxim of Escheat as in Kent the Father to the Bough and

of Fines the Plaintiff shewed divers Court Rolls of Admittances upon Surrenders and that the Fines taken by the Lord were not certain but sometimes one sometimes another Per Curiam To prove a Custom for uncertainty of Fines and not to be certain two years Rent there ought to be shewed Court Rolls Fines upon Discent and Purchase and that in Cases of Descents and that upon such Admittances they used to pay two years Rent the proof ought to be in case of Descents for in case of a Surrender or Purchase the Lord may take what Fine he will But such Fines are no proof to prove the taking uncertain Fines by the Custom but the same ought to be in cases of Descents Of Fines reasonable Excessive Fines how to be determined But where the Fines are uncertain yet the Lord cannot exact excessive Fines and if the Copy-holder deny to pay it it shall be determined by the Opinion of the Judges before whom the matter depends Hubbard and Hamon's Case cited 1 Brownl 186.4 Rep. 27. mesme Case Co. Lit. 59 60. To this purpose is Denny and Lemon's Case Hobart p. 135. Copy-holder brought Trespass against his Lord. Defendant pleads he had admitted the Copy-holder and had assessed a Fine of twenty Nobles and had appointed him to pay it to his Bayliff at his House within the Manor three Months after and alledged he had not paid it The Plaintiff demurs Whether in pleading the reasonableness of the Fine must be averred for that the Lord had not averred the Fine was reasonable But Per Cur. the Lord is not bound to aver it but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable and so to put it upon the Judgment of the Court for the Fine in Law is arbitrary and is due to the Lord of common Right and it is only in point of excuse to the Tenant if it be unreasonable and the Court shall judge the unreasonableness of it The Copy-holder if he be Defendant may plead not Guilty and then it shall come in Evidence whether the Fine were reasonable or not and so is the Opinion of my Lord Coke Comment upon Lit. Sect. 74. The reasonableness saith he shall be discussed by the Justices upon the true circumstances of the case appearing unto them and if the Court where the Cause dependeth adjudgeth the Fine exacted unreasonable then is not the Copy-holder compellable to pay it for all excessiveness is abhorred in the Law It was argued in Wheeler and Honor's Case That all Fines are reasonable unless the contrary appear 1 Keb. 154. What Customs are good as to payment of Fines Of Fines due by the Copy-holder to the Lord some be by change or alteration of the Lord and some by change or alteration of the Tenant If the Fine be due by the alteration of the Lord such alteration must be by act of God Fines due by the alteration of the Lord. for if the Lord do alledge a Custom within his Manor to have a Fine of every one of his Copy-holders at the alteration or change of the Lord of the Manor be it by alienation demise death or otherwise this Custom is against the Law as to the change of the Lord by the act of the Party for by that means the Copy-holders should be oppressed by the multitudes of Fines by the Lords own act but when the change groweth by the act of God there the Custom is good By the act of God as by the death of the Lord Co. Lit. 59. b. Due by the alteration of the Tenant But it is a good Custom that the Copy-holder had used to pay a Fine upon every alteration of the Tenant either by the act of God or by the act of the Party Co. Lit. 59. b. Armstrong's Case The Fine is to be assessed by the Lord. The Fine by whom to be assessed But in some places the Custom is That the succeeding Copy-holder shall compound with the Lord for his Fine and if he cannot compound then the Homage of the Manor shall assess the Fine as was the Case of Ford and Hoskins Cro. Jac. 368. Custom not to pay a Fine till full Age. The Custom is not to pay a Fine till one come to Age it s a good Custom 3 Keb. 90. agreed to in Champian and Atkinson's Case Fines as to Admittances to Reversions or Remainders Copy-holder in Fee surrenders to the Use of another for Life when Lessee dyes he shall not pay a Fine for his Admittance to the Reversion for this continues always in him 2 Rep. 107. Margaret Podger's Case If Copy-holder in Fee surrender to the Use of one for Life the Remainder to another for Life the Remainder to another in Fee there is but one Fine due for the particular Estate and the Remainders are but one Estate 1 Rolls Abr. 505. What refusal to pay a Fine shall be a Forfeiture or not If the Fine be uncertain Notice to be given if the Fines be uncertain notice must be given before there be a Forfeiture aliter if the Fine be certain but yet Denny and Lemon's Case is good Law Time and place must be ascertained and refusal must be proved 1 Keb. 154. 4 Rep. 27 28. The Lord assesseth a Fine of 12 l. to be paid by a Copy-holder Tendring the Fine certain though not the Fine assess'd is no forfeiture and appoints it to be paid at his Capital Messuage of the Manor three Months after and the Copy-holder pretending the Fine to be certain viz. two years Quit-Rent offered at the day of assessing the Fine according to the Rent for two years but at the day appointed for the payment thereof cometh not thither to excuse his non-payment nor makes any other refusal Per Cur. this is in Law a forfeiture of his Copy-hold but if he had come at the day assigned him for the payment and had then tendred the two years Quit-Rent being the Fine certain though not the Fine assessed it had been no forfeiture Cro. Jac. p. 617. Gardner and Norman It is adjudged in the Case of Dalton and Hammond More n. 851. If the Fine be certain the Tenant is to bring it with him to the Court and pay it before Admittance and if he be not ready to pay it it s a Forfeiture aliter of the refusal to pay an excessive Fine Where a Copy-holder hath divers several Lands For every several Tenure several Fines severally holden by several Services by Copy there the Lord may assess and demand Fines severally for every parcel which is so severally held for the Tenant may refuse to pay a Fine for the one and so forfeit this and yet pay the Fines for the others and for every several Tenure the Lord ought to demand and assess a several Fine as in Tavernor and Cromwel's Case 4 Rep. 28. Hobart and Hamond's Case How the

admit any other but him to whom it is limited and assigned by the Tenant who made such Forfeiture and the Lord cannot dispose of it otherwise And farther That if the Lord admit any other and after sells the Manor to a Stranger by whom Cesty que use is admitted Cesty que use hath a good Title and shall avoid all mean acts and dispositions made by the Lord as he should if a Surrender had been made to his Use ibid. Mr. Keble in the Reporting of this Case of Coply's 2.823 saith A Surrender is to the Lord to the intent quod inde faciat voluntatem yet by Custom the Surrenderer by Petition or Declaration may direct it to any person whatever and the Lord must pursue it and there is no Estate in the Lord but it remains in the Tenants hands till Admittance of such party and the Purchasor might come in at any time The Case of Taylor and Shaw in Carters Rep. 6 22. The like Custom is adjudged void but that was upon a fault in the special Verdict Tenant in Tayl of Copy-hold Lands the Jury find a Custom That this is to be barred by seizure of the Lord as a Forfeiture non alio modo and not otherwise as the Lord Chief Justice Bridgman well observed and that being naught the whole Custom is in vain As for his first Reason of such a Custom being void that its a precarious Custom you must have the concurrence of the Lord or you cannot do it and Custom implies Right though this is of weight yet it might have been objected in Pilkinton's Case and Grantham's Case yet in these Cases such Custom is adjudged good But his second Reason is cogent by this negative Custom you destroy that which is essential to the Estate If you will allow a customary Tayl you must allow a customary Recovery and so this Case differs from those others Now these ways of barring Entayled Copy-holds are in nature of a Recovery to dock the Entayl But Rolls Opinin in Stiles 450. Pilkington and Bagshaws Case is not Law he conceived there could be no such Custom to cut off Entayled Lands of Copy-hold by the Forfeiture and seizure of the Lord for his seizure upon the forfeiture destroys the Copy-hold Estate at Common Law Modus Conventio vincunt Legem And therefore It was made a Question in Dell and Heydon's Case If Tenant in Tayl of a Copy-hold Remainder in Fee is impleaded by plaint in a Court Baron in nature of a Writ of Entry in the Post The manner how and the reason why a Recovery shall bar a Copy-hold Estate and suffers a Common Recovery with Voucher whether if Tenant in Tayl dye sans issue this shall bind the Remainder Cro El. p. 372. But Rolls in 1 Abr. 506. in the same Case saith this may be barred by a Common Recovery for a warranty may be annexed upon this by a Surrender to an Use or by a confirmation or by Release with Warranty and it may be intended he shall have other Copy-hold in value And Sir Francis More in the Report of this Case saith if Tenenant in Tayl come in as Vouchee this is a bar to the Issues and Remainder Surrender with warranty to an Use and grant accordingly makes the party in the per by the Surrenderor and upon this Warranty the Surrenderor may be vouched and Recovery in value shall be only of other Copy-hold Lands in the Manor No. 488. and in 4 Rep. mesme Case it s adjudged that such Recovery shall make a Discontinuance and shall take away the Entry of the Heir in Tayl. If a Copy-holder surrenders in Tayl and the Heir of the Donee is to bring a Formedon he ought to count of a Gift made by the Copy-holder who surrendred and not by the Lord for he is but the Instrument to convey it and nothing passeth from him Cro. El. 361. Paulter and Cornhil And yet in the Case of Clun and Pease adjudged since Dell and Higden's Case Per totam Curiam A Recovery with common Voucher in a Plaint in nature of a Writ of Entry in Curia Manerij shall not bind the Issue in Tayl for it shall not bind but upon expectancy of a Recovery in value which is the reason it binds for Land at the Common Law and here he cannot have any Land in value neither at Common Law nor customary Land for if it should be so Conveyed the Lord should lose his Fine and one should hold his Land as a Copy-holder without Admittance or Grant from the Lord which is contrary to the nature of a Copy-hold but it s a Discontinuance clearly which cannot be defeated by Entry Cro. El. p. 391. Now as a Feoffment will not destroy a Copy-hold Estate Entayled so neither a Fine or Recovery at Common Law It doth not make any Discontinuance Copy-hold Estate how discontinued or not for these being Common Law Assurances they do not work upon the Assurance of the Copy-hold and that that doth not work upon the right of the Estate Tayl cannot make a Discontinuance And the same reason of a Fine which is but a Feoffment on Record and the same reason holds a Fine may work to the destruction of an Estate where it is not preserved by special Custom but this is preserved by special Custom so for a Recovery that that is in demand is the Free-hold True if the Recovery were in the Lords Court there the Estate may be turned to a Right and a Recovery at Common Law cannot bar a Copy-hold Estate because of the Recovery in value to which the Warranty is annexed doth not go according to the Copy-hold but according to the Freehold These being Common Law Assurances work only a Common Law Interest and cannot work upon a Copy-hold this is the Abstract of Glin's Argument in Taylor and Shaw's Case Carter's Rep. How Copy-hold barred by a Fine at Common Law But the Lord Chief Justice Bridgman in that Case put a nice difference as to the barring Entayled Copy by a Fine at Common Law if a Copy-hold be suspended while it is in suspence a Fine at Common Law bars it for one cannot be a Copy-holder in Tayl and have the Inheritance of Freehold in himself it must be suspended for a time as if he divide the Copy-hold from the Freehold for a time and he there gave a notable difference Difference as to what may pass by a Fine or be barred by a Fine where a man may pass a thing by a Fine and where he may bar by a Fine a right of Copy-hold cannot be passed by a Fine but may be barred by a Fine A man that hath a Rent-charge he levies a Fine of the Land the Rent-charge is gone by it yet the Fine is not levied of the Rent but of the Land as for his other Reason from the words of the Statute 32 H. 8 Of Lands any ways Entayled c. I conceive that cannot extend to Copy-hold Lands Carter's

after the death of the Lord he should pay a Fine it had been good This was resolved by the Judges in Serjeants-Inn in a Case of one Armstrong referred out of Chancery Lord cannot grant a Copy-hold in Reversion The Lord of a Manor cannot grant a Copy-hold in Reversion without a special Custom March Rep. 8. Whether the Lord of a Manor might grant Copies in the remainder only with the assent of the Tenants was a question if it was a good Custom but not resolved 3 Leon. 226. The Copy-holder is surdus mutus the Lord shall have the custody for otherwise he shall be prejudiced in his Rents and Services and not the Prochein Amy Cro. Jac. 105. Eavers and Skinner To seize the Estate of a Convict Felon Custom was if a Copy-holder be convict of Felony the Lord shall seize the Copy-hold Estate it is a good Custom 1 Leon. p. 1. Bornford and Packington 2 Brownl 217. Hitchins and Cooper Custom was that if the Tenant did not repair and it was presented by the Homage To repair or be presented The Tenant shall be amerced and the Lord shall distrain the Beasts of the Tenant and under-Tenant a good Custom March p. 161. Thorn and Tyler For the Custom which gives the distress knits it to the Land and so it is not meerly personal otherwise the Lord by such a devise as this viz. by making the Lease for one year by the Tenant should be defeated of his Services and though a Custom cannot extend to a Stranger Custom cannot extend to a Stranger Under-Tenant not a meer Stranger yet the under-Tenant is not a meer Stranger but as a customary Tenant for he shall have the Priviledges of a customary Tenant qui sentit commodum c. And transit terra cum onere He that shall have the Land ought to undergo the charge By all the Judges in that Case Customs as to Surrenders vide Surrenders Customs as to Forfeitures vide sub titulo Forfeitures Customs as to Admittances Fines vide Fines Admittances Custom The Lord not compellable to make a Grant but he is to make an Admittance That after the death of Tenant for Life of a Copy-hold the Lord is compellable to make the Estate to the eldest Son for Life and if he hath no Son to the Daughter and so imperpetuum this is not a good Custom but against Law because the Lord by this Custom is compellable to make a Grant Aliter if it be to make an Admittance More n. 1088. The Lord Grey's Case Customs in respect of the Tenants As to Forfeitures vide sub titulo Forfeitures As to Surrenders vide Surrenders As to Fines vide Fines c. Sparsim per tout That the Lord shall have the Estate of a Felon The Custom was if any Copy-holder of a Manor commit any Felony that he shall forfeit to the Lord his Copy-hold Estate and that the Lord upon presentment of this by the Homage may enter and seize the same it s a good Custom But the Case went farther H. a Copy-holder had killed one P. and the same was presented by the Homage If he be acquitted and they find that H. was Indicted for the same and Acquitted after this acquittal the Lord did enter and seize the Estate as forfeited But as to that point the Court gave not any Opinion 2 Brownl Rep. Gittins and Cooper By-Laws Custom was That the Steward of a Manor might make Laws and Ordinances for the well ordering of the Common and to assess a Penalty on those who broke those By-Laws also to prescrribe to Distrain for the Penalty Per Cur. The Custom is reasonable and the difference is where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only And the Commoners are bound to take notice of these Ordinances March p. 28. James and Titney Custom to make By-Laws And this Law was made That no Tenant of the said Manor should put into such a Common any Steer being a year old or more upon pain of 6 d. for every such Offence and that it should be lawful to distrein the same It s avoided by Law for it s against common Right where a man hath Common for all his Cattel commonable to restrain him to one kind of Cattel and had it been that none should put in his Cattel before such a day that had been good for this doth not take away but order the Inheritance 1 Leon. 190. Erbery and Latton Custom was A Copy-holder for Life may nominate his Successor to have it for Life To compound for the Fine and the person nominated to compound with the Lord for the Fine and if he could not compound then he should give such a Fine as the Homage should Assess and should be admitted and hold for his Life it s a good Custom Cro. Jac. 368. Ford's Case 1 Rolls Rep. 125.195 More n. 1071. mesme Case 2 Brownl 85. Rolls and Mason Noy Rep. 2. Yestmester Custom In this he hath a greater Estate than a Sole Tenant for Life In Replevin and Avowry for not doing Suit To tender 8 d. for doing suit in a Court-Baron the Plaintiff sets forth a Custom That if any Tenant live at a distance and comes at Michaelmas and pays eight pence to the Lord and a penny to the Steward he shall be excused for not attending and then he said he tendred eight pence and the Lord refused Tender and refusal all one with payment if he avers That there are sufficient Copy-holders that live near the Manor its good and tender and refusal by Hales is all one with payment Modern Rep. p. 77. Legingham and Porphiry It s a good Custom this not being a customary Court but a Court-Baron where the free Suitors are Judges Siderfin p. 361. mesme Case 2 Keb. 344 380 851 mesme Case The Custom was Lord not compellable to make a Surrender That after the death of Tenant for Life of a Copy-hold the Lord is compellable to make an Estate to the eldest Son for Life and if he hath no Son to a Daughter and so in perpetuum The Justices were of Opinion that this was against Law More n. 1088. Lord Grey's Case Vide prius Of Customs in respect of the Estate Here I shall recite some few Cases of Customs about Leasing and Limitation of Estates when good or not As to the Custom concerning Leases Vide Leases and Licenses As to the Custom of Intailing Copy-holds and barring them Vide sub titulo Entails As to the Ceremony of Presentment vide Presentment Pled quod si terre sunt concesse habend sibi suis grantee habet in feodo Ra. Entries 627 116 155. Pled quod si terrae sunt concessae al. 2 pro vitis ille qui primo nominatus in copia habeat terras solus pro vita 3 Br. 475. Hern 73 83 124 654 712. Simile de terris