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ALI Customes against Cannon-Law are to be Tryed at Common-Law, and not in the Ecclesiastical Courts.
Customs are payable to the King by the Common-Law: the Reasons why they are so paid, see in Davies Rep. fo. 9. ct 10. Le case del Customs.
See the difference between Malum in se, etmalum prohibitum, and how the King may Pardon it, but not licence it to be done, 11 H. 7. fo. 12. et Davies Rep. fo. 73.
Where Debt or damages are recovered in
a Court-Baron, the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff, But to impound them and keep them as pledges until the Defen∣dant makes his agreement; but where it hath been the use of the Court to award a Levari facias, it is good by Custome.
Where the younger son in Burrough-English dyes, the Middle Son (not the Eldest) shall have the Land. The same Law for Custo∣mary or Copy-hold Lands.
It was the Custom of the Kings-Bench e∣very Term once or twice to send the Coroner of that place to the Marshal to view the Pri∣soners that are in the Marshals Custody by Commititur or matter of Record, and if any of them are wanting that he could not find them there, then to mark their names in his Coroners Book, and to inform the Court thereof. And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners; And if he found not sufficient cause of excuse, the Court would Record their escape against the Marshal; And the abusing of an Office, is the escape of Prisoners in the Marshal, an abuse of his Office, and just cause of Forfei∣ture.
If an Alien have a son that is also an Alien, and after the Father is made free, and then hath another Son, and after purchaseth Lands
and dyes; The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm. And also if there be three Brothers, and the middlemost purchaseth Lands, and dyes without Heir of his Body, the Eldest Bro∣ther shall inherit and not the Youngest.
By the Custom of London a Feme Covert, that is to say, a Sole Merchant, may sue and be sued in absence of her Husband. Bul∣strode part. 1. fo. 14. where you may read of three sorts of Customs that are void and a∣gainst Law, 1. a Custom against Justice. 2. a Custom against the Benefit of the Com∣mon-Wealth, and 3. a Custom that is to the Prejudice of a third Person.
Custom and usage in the intendment of the Law, is such a usage as hath obtained the force of Law, and is binding to such par∣ticular place, as Gavelkind in Kent, and Burrough-Euglish in many Corporations in England.