CCCCXXXVIII leigh and okeley and christmas case custom Olipbe leigh fermor of  the queen of a wood call Meerherst wood in Warplesden in the county of Surrey  bring a action of trespass against Henry okeley and Robert christmas for break  of the say wood and therein enter and cut down of two hundred load of wood and  carry away the same c the defendant plead that before the time in which the  trespass be suppose c that king h be seize of the manor of Warplesden whereof  the say wood be parcel of which manor a close call Withybod contain eleven  acre eiden bosco adjacent be parcel and that the say wood be and time out of  mind c be close and separate with hedge and ditch from the say eleven acre  which say hedge and ditch per totum time predict to be adbuc are predict bosco  spectant pertinent and that the say eleven acre be and time out of mind be  customary land parcel of the manor aforesaid and demise and demisable in  feesimple and that the say king h at a court hold h by his steward demise the  say eleven acre by copy to John gore and his heir and that within the say  manor there be this custom that every copyholder tenant of the say eleven acre  c have use and accustom per see well to be a servant swine per the dawn  precept to cut off below hegoat aspartame subboscum in predict bosco in quo c  pro reparation to say before sepium defenstonum inter predict boscum in quo c  and the say eleven acre c whenever eaedem hedge defension in decasu to stand  out and show further that at the time of the trespass c the say Leonard hedge  and fence be in decay and so justify upon which the plaintiff do demurrer in  law it be argue by Godfrey that the prescription be not good for it appear  that this customary land be contigue adjacent areas to the say wood I where  the trespass be do and of common right the make of the hedge do appertain to  the owner of the wood and the prescription be no more but to take wood in the  land of another adjoin to my land to make the hedge of the same land in which  the wood grow which can be a good prescription for it sound in charge and not  to the profit of he who prescribe which see e prescription trespass against a  abbot because where the plaintiff be farmor of the king of his hundred of d  and by reason thereof he may make attachment and distrain for the debt of the  king within the say hundred and where for a certain debt of the king he  distrain the beast of one a and the abbot make rescous to which the abbot say  that he be lord of the manor of d within which manor there be this custom c  that if any Leonard er p distress be take within the say manor that the same  shall be put into the pound of the say abbot of the same manor and not drive  out of the manor and there ought the distress to remain three day so that if  the party will agree within the three day that then he shall have his beast  and be say that the plaintiff will have drive the say beast out of the say  manor and that he will not suffer he upon which there be a demurrer because it  be not any profit to the abbot but a charge to keep the beast of another also  he say that the king shall not be bind by such a custom as another person  shall whereupon judgement be give for the plaintiff so here in the principal  case there shall be no damage to the defendant if the wood be not fence for if  his cattle escape into the wood he may justify it because it be in default of  the plaintiff enclosure and if the beast of the plaintiff escape into the land  of the defendant he may take they damage pheasant for the cause aforesaid h a  custom be plead that if any tenant of the manor shall take the cattle of any  one damage pheasant and shall therefore distrain they that then the tenant so  distrain they ought to bring they to the lord pound which if he shall not do  at the next court he shall be amerce in a certain sum to the lord of a manor  to be pay and that be hold no good custom because it be against common right  and the commonlaw for by the commonlaw and common reason every one find cattle  in his own land damage pheasant may impound they in his own land and the lord  be not damnified thereby so it be of a bylaw that every one who hold so many  acre S of land in such a town shall yearly pay a certain sum of money to the  church of the same town and shall forfeit for every default of payment thereof  twenty pound such bylaw although it have continue time out of mind yet it be  not of any validity because for not payment of the say sum to the church the  lord of the manor be not damnified and therefore he shall not have any gain  contrary if the penalty have be limit to the churchwarden because they be bind  to repair the church another exception be take to the form of the prescription  whenever eaedem hedge defension in decasu to stand out and that be too general  for so they may be in decay by his own default as if be himself wrongful pull  up the hedge in which case there be no reason but that he shall repair they at  his own cost and charge and therefore he ought to have plead cum in de  grammatical case to stand out in the default of the tenant of the wood another  exception be take because that here this custom be plead particular and  appropriate to the eleven acre only and be not extend to the whole manor and  to that purpose the case of e be cite where a custom be apply to Leonard one  part of a town as to say that such a house within such a town be of the nature  of gavelkind and the rest of the town be guildable see Elizabeth dyer it be  adjourn c hill Elizabeth in the common plead