b the complete copyholder sec XXXIII custom be define to be a law or right not  write which be establish by long use and the consent of our ancestor have be  and be daily practice custom prescription and usage how soever there be  correspondency among they and dependency one on the other and in common speech  one of they be take for another yet they be three distinct thing custom and  prescription differ in this custom prescription and usage how they differ  custom can have any commencement since the memory of man but a prescription  may both by the commonlaw and the civil and therefore where the statute h say  that all action popular must be bring within three year after the offence  commit whosover offend against this statute and do escape uncalled for three  year he may be just say to prescribe a immunity against any such action a  custom touch many man in general prescription this or that man in particular  and that be the reason why prescription be personal andisalwayes make in the  name of some person certain and his ancestor or those who estate he have but a  custom have no person certain in who name to prescribe be therefore call and  allege after this manner in such a borough in such a manor there be this or  that custom and for usage that be the efficient cause or rather the life of  both for custom and prescription lose their be if usage fail shall I go about  to make a cata logue of several custom I shall with sisyphus saxum  to cause to revolve undertake a endless piece of work therefore I will forbear  since the relation will be a argument of great curiosity and a task of great  difficulty I will only set down a brief distinction of custom and leave the  particular to your own observation custom be either general or particular  general which be part of the commonlaw be currant through the whole common  wealth and use in every county every city every town and every manor  particular which be confine to short bind and limit and have not such choice  of field to walk in as general custom have these particular custom be of two  sort either disallow what general custom do allow or allow what general custom  do disallow as for example sake by the general custom of manor it be in the  copyholder power to sell to who he please but by a particular custom use in  some place the copyholder before he can enforce his lord to admit any one to  his copihold be to make a proffer to the next of the blood or to the next of  his neighbour ab orient sun who give as much as the party to who the surrender  be make shall have it so on the other side by the general custom of manor the  pass away of copyhold land by deed for more than for one year without licence  be not warrant yet some particular custom in some manor do it so by the  general custom of manor presentment or any other act do in the leet after the  month expire contrary to the statute of great Charta and e be void yet by some  particular custom such act be good and so in million of the like as in the  sequel of this discourse shall be make manifest and therefore not to insist  any long in dilucidating this point let we in few word learn the way how to  examine the validity of a custom for our direction in this business we shall  do well to observe these fix rule which will serve we for exact trial custom  and prescription ought to be reasonable and therefore a custom that no tenant  of the manor shall put in his cattle to use his common in plain to sow after  the corn sever until the lord have put in his cattle be a void custom because  unreasonable for peradventure the lord will never put in his cattle and then  the tenant shall lose their profit so if the lord will prescribe that he have  such a custom with in his manor that if any man beast be take by he upon his  demesne damage pheasant that he may detain they untilltheowners of the beast  give he such recompense for his harm as he himself shall request this be a  unreasonable custom for no man ought to be his own judge custom and  prescription ought to be accord to common right and therefore if the lord will  prescribe to have of every copyholder belong to his manor for every court he  keep a certain sum of money this be a void prescription because it be not  accord to common right for he ought for justice sake to do it gratis but if  the lord prescribe to have a certain fee of his tenant for keep a  extraordinary court which be purchase only for the benefit of some particular  tenant to take up their copyhold and such like this be a good prescription  andaccordingtocommon right they ought to be upon good consideration and  therefore if the lord will prescribe that whosoever pass through the king high  way which lie through his manor shall pay he a penny for pass this  prescription be void because it be not upon a good consideration but if he  will prescribe to have a penny of every one that pass over such a bridge  within his manor which bridge the lord do use to repair this be a good  prescription and upon a good consideration so if the lord will prescribe to  have a fine at the marriage of his copyholder in which manor the custom do  admit the husband to be tenant by the courtesy or the seem tenant in dower of  a copyhold this prescription be good and upon a good consideration but in such  manor where these estate be not allow the law be otherwise they ought to be  compulsory and therefore if the lord will prescribe that every copyholder  ought to give he so much every month tobeare his charge in time of war this  prescription be void but to prescribe they ought to pay so much money for that  purpose be a good prescription for a payment be compulsory but a gift be  arbitrary at the voluntary liberty of the giver they ought to be certain and  therefore if the lord will prescribe that whensoever any of his copyholder die  without heir that then another of the copyholder shall hold the same land for  the year follow this prescription be void for the incertainty but if the lord  will prescribe to have of his copyholder d a acre rend in time of war d a acre  this prescription be certain enough they ought to be beneficial to they that  allege the prescription and therefore if the lord prescribe that the custom  have always be within the manor that what distress soever be take within his  manor for any common person cause be to be impound for a certain time within  his pound this be no good prescription for the lord be hereby to receive a  charge and no commodity but if the prescription go further that the lord shall  have for every beast so impound a certain sum of money this be a good  prescription if we desire to be more full satisfy in the general knowledge of  prescription and custom we shall find many maxim which make very material for  this purpose among which I have make choice of these three as most worthy of  your observation thing gain by matter of record only can be challenge by  prescription and therefore no lord of a manor can prescribe to have felon good  fugitive good deodand and such like because they can be forfeit until it  appear of record but wave estraies wreck and such like may be challenge by  prescription because they be gain by usage without matter of record a custom  never extend to a thing new create and therefore if a rend be grant out of  gavel kind land or land in borough English the rend shall descend accord to  the course of the commonlaw not accord to the custom if before the statute h  land be devisable in any borough or city by special custom a rend grant out of  these land be not devisable by the same custom for what thing soever have  their beginning since the memory of man custom maintain not if there be a  custom within a manor that for every house or cottage two shilling fine shall  be pay if any tenant within these liberty make two house of one or build a new  house he shall not pay a fine for any of these new house for the custom only  extend to the old so if I have estovers appendant to my house and I build a  new house I shall not have estovers for this new build house upon this ground  it have be doubt if a man by prescription have course of water to his full  mill he convert these into corn mill whether by this conversion the  prescription be not destroy in regard that these corn mill be thing new create  but because the quality of the thing and not the substance be alter therefore  this alteration be hold insufficient to overthrow the prescription for if a  man by prescription have estovers to his house although they alter the room  and chamber in the house as by make a parlour where there be a hall veil  turning yet the prescription stand still in force and so if by prescription I  have a ancient window to my hall and I convert this into a parlour yet my  neighbour upon this change can stop my window cause how above custom be  likewise take strict though not always literal there be a custom in London  that citizen and freeman may devise in mortmain a citizen that be a foreigner  can devise by this custom a infant by the custom of gavelkind at the age of  fifteen may make a feoff yet he can by the custom make a will at that age to  pass away his land to make a lease and a release which amount to a feoff if  there be any custom that copyhold land may be lease by the lord well per  supervisor well deputy supervisoris this custom give not power to the lord to  authorize any by his last will and testament to keep a court in their own name  and to make lease secundum experience manor but these custom have this strict  construction because they tend to the derogation of the commonlaw yet they be  not to be confine to literal interpretation for if there be a custom within  any manor that copyhold land may be grant in fee simple by the same custom  they be grantable to one and the heir of his body for life for year or any  other estate whatsoever because who although quoth majus non debet quoth minus  be non to be for sale so if there be a custom that copyhold land may be grant  for life by the same custom they may be grant durante widowhood but not e  turning because a estate during widowhood be less than a estate for life  before the statute of h land in certain borough be devisable by custom by the  same custom be implicity warrant authorize executor to sell land devisable now  with your patience I will only point at the manner of plead of custom I find a  four fold kind of prescribe to prescribe in his predecessor as in himself and  all those who estate he have to prescribe general not tie his prescription to  place or person as where a chief justice prescribe that it have be use that  every chief justice may grant office or where a sergeant prescribe quoth ankle  to have custom that sergeant ought to be implead by original Writ and not by  bill to prescribe in a place certain to prescribe in the place of another the  first sort of these prescription a copyholder can use in regard of the  imbecility of his estate for no man can prescribe in that manner but only  tenant in feesimple at the commonlaw the second sort of these may be use  sometime by copyholder in the plead of a general custom but in allege of a  particular custom a copyholder be drive to one of the last and as occasion  serve he use sometime the one sometime the other if he be to claim common or  other profit in the soil of the lord then he can prescribe in the name of the  lord for the lord can prescribe to have common or other profit in his own soil  but then the copyholder must of necessity prescribe in a place certain and  allege that within such a manor there be such a custom that all the tenant  within that manor have use to have common in such a place parcel of the manor  but if he be to claim common or other profit in the soil of a stranger then he  ought to prescribe in the name of his lord say that the lord of the manor and  all his ancestor and all those who estate he have be wont to have a common in  such a place for himself and his tenant at will c