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.

Of Pleading a Custom for Common by Prescription.

Defendant pleads in Trespass, That there are divers Freehold Tenements, time out of mind, in the said Manor, &c. and that there were and are, infra eand. villan divers. customary Tenements, parcel of the said Manor, grantable ad voluntatem Dom. by Copy, That all the Te∣nants of the Free Tenements, time out of mind Habuerunt & usi fuerunt, and all the Tenants of the customary Tenements, per consuetudinem ejus∣dem manerij in eodem manerio a toto tempore supra dict. usitat. & approbat. habuerunt & habere con∣sueverunt solam & separalem pasturam, &c. for all

their Cattel (Hogs, Sheep and Steers excep∣ted) Levant and Couchant upon their respective Messuages and Tenements every year for all times of the year, except, &c. as belonging and appertaining to their several Tenements, and that at the time of the Trespass the De∣fendant put in his own Cattel, Levant and Couchant, upon this said Messuage, prout ei bene licuit, &c. Exceptions to this Pleading, were, 1. That he was seised de Antiquo Messu∣agio, and of no Land, is not proper, for in com∣mon intention Cattel cannot be said to be Levant upon a Messuage only. 2. He saith he put in his own Levant and Couchant, but avers not as he ought, That none of them were Porci, Oves, or Steers. 3. The Plea doth not set forth the Custom of the Manor, but implicitely, That the Freehold and customary Tenants have had and enjoyed Per Consuetudi∣nem Manerij solam & separalem Pasturam for all their Cattel, which is a double Plea, both of the Custom of the Manor, and of the claim by rea∣son of the Custom, which ought to be seve∣ral, and the Court shall judge, and not the Jury, whether the claim be according to the Custom alledged; the Custom may be different from the Claim, Per Consuetudinem Manerij, if particularly alledged, Vaughan's Rep. 253. North and Cole.

In Replevin, Defendant makes Conuzance, as Bayliff to, &c. Damage Fesant. In bar of this Cognizance the Plaintiff pleads, That H. Earl of H. was seized of the Manor of A. where∣of one Messuage, &c. is parcel, and demisable by Copy, and that within the said Manor there is this Custom, That every customary Tenant of the said Messuage, &c. have used to have Pasture, &c. in the said place called

Land-Mead,* 1.1 and so derives his Title by Grant by Copy: the Issue was upon the Traverse, Ab∣sque hoc quod infra manerium praed. talis habetur con∣suetudo quod quilibet tenens custumarius, &c. have used to have Common, &c. prout, &c. Here is no Custom alledged, because it did not ap∣pear in Pleading, That the place where the taking was supposed to be, was within the said Manor, and no Custom of the Manor can ex∣tend out of the Manor, but he ought to pre∣scribe in the Manor. Note, he ought to have pleaded, That the place in which, &c. was par∣cel of the Manor, and then the Plea had been good, Hob. p. 286. 1 Brownl. 172. Roberts and Young.

Plaintiff in Replevin rejoyns by Custom of all the Copyholders of Blackacre, in the Manor of D. used to have Common in A. to which the Avowant demurred, because he should have prescribed in the Lords name, A. be∣ing out of the Manor; but the truth being that A. was anciently parcel, and lately se∣vered by the Lord, this destroys not the Com∣mon, Per Cur. But the Copy-holder ought to prescribe specially, That Talis consuetudo suit, till such a day,* 1.2 and that after the Lord granted over, &c. as on change of a Corporation in Lutterell's Case. 1 Keeble 652. Davy and Watts.

The Case was, The King was seized of a Manor,* 1.3 where there were divers Copy-holders for Life, and was also seized of 8 Acres of Land in another Manor, in which the Copy-holders have used, time out of mind, &c. to have Common; and after the King grants the Manor to one, and the 8 Acres to another; and a Copy-holder puts in his Beasts into the 8 Acres: And in Trespass brought against him by the Patentee of the 8 Acres, he pre∣scribes, That the Lord of the Manor, and all

those whose Estates he hath in the Manor, have used, time out of mind, &c. for them selves and their Copy-holders, to have Com∣mon in the said Acres of Land. And he far∣ther pleads, That he was Copy-holder for Life by Grant (after the said unity of possession in the King) and so demanded Judgment si actio. Against which the unity of possession was pleaded: The Defendant demurs: Per Cur. as this Prescription was pleaded the Common was extinct; but by special pleading he might have been helped, and save his Common, for this was Common appendant, 2 Brownl. 47. Vide James and Read, Tirringhams Case, 4 Rep. 38.

Custom was alledged,* 1.4 That all the customa∣ry Tenements, Habuerunt & habuere consuever. se∣paralem pasturam, &c. it was excepted to this Plea, That the Copy-holders have not shewed what Estate they have in their customary Tene∣ments. And 2dly. Its not alledged that they have solam pasturam for their Beasts Levant and Couchant: Per Cur. its not material, for be their Estates what they will, in Fee, or Life, or Years, Custom hath annexed this sole feeding as a profit apprender to their Estates; and this they claim by the Custom of the Manor, and not by Prescription. As to the other Exception, True it is, if one claim only Common appur∣tenant to his Land, he ought to say for his Beasts Levant and Couchant; for in such case he claims but part of the Herbage, and the re∣sidue the Lord is to have; and therefore if he put in any Beasts that are not Levant and Couchant, he doth a wrong to his Lord, and the Lord shall have Trespass: But here the Commoners claim all the Herbage, and so ex∣clude the Lord totally, and so its no mischief to the Lord, 2 Sanders 326, 327. Hoskins and Robins.

* 1.5If a Copy-holder for Life had used to have Common in the Waste of the Lord, or certain Estovers in his Wood, and the Lord alien the Waste and the Wood to a Stranger; and after grants certain Copy-hold Lands and Houses for Lives, such Grantees shall have Common and Estovers in the Lands and Woods which were aliened, notwithstanding the Severance: But after such severance, the Copy-holder shall not plead generally, Quod infra manerium praed. talis habetur consuetudo, for after such severance, the Waste or Wood is not parcel of the Manor, but he may plead, That before and until such time of the severance, Talis habebatur & a toto tempore, &c. consuetudo, &c. and then shew the severance, as in Murrel's Case, where the Lord severs the Freehold and Inheritance from the Copy-hold, Co. 8 Rep. Swain's Case.

Where a Copy-holder prescribes for Estovers in the Soil of another, and he saith, That all Copy-holders Ejusdem tenementi usi sunt, &c. where he ought to have said Ejusdem manerij, &c. This Prescription was adjudged void, 21 Ed. 4.36. b. 63. b.

Prescription Pro ligno combustibili, is good, 2 Brownl. 330.

* 1.6A Prescription for a Copy-holder to cut Boughs of Trees, is well laid by way of a Cu∣stom, 2 Brownl. 329.

Notes

• * 1.1

  The Form how to apply the Custom of a Manor to a particular Messuage in pleading.
• * 1.2

  Special Pre∣scription in Case of seve∣rance.
• * 1.3

  Common ap∣pendant.
• * 1.4

  Sola & separa∣lis pastura.
• * 1.5

  Estovers.
• * 1.6

  Trees.