Bulstrode termin pasch James b r hill plaintiff against hanks defendant enter  pasch James b r rot a action upon the case for a trove and conversion Ro Ro  Abr more Inst in a action upon the case for a trover and conversion of his  good of such a quantity of corn the defendant plead and justify the take at  such a place S at Lichfield as bellman there by the custom to take out of  every bag hold a busbel and no more a pint and if it hold more then a quart  and show that he be choose bellnian and tempore quo he do take the same as by  the custom it belong to he so to do and lie the take in one place by the  custom and the conversion in another place and so justify upon this plea the  plaintiff demurrer in law it be urge for the plaintiff by Weston and davenport  that the plea be not good the question be three two touch the form of the plea  and the three touch the validity of the custom as it be plead the plaintiff  declare upon a trover and conversion of his good at such a place the defendant  justify the take as bellman his plea here be no more than the general issue  and this appear by h fol a in trespass for break his close and carry away of  twenty load of timber the defendant as to the break of the close plead that  the plaintiff lease the same to he at will by force of which he enter and as  to the carry away of the twenty load of timber he plead that one a be seize of  the twenty load of timber and of the close make b his executor and die and  that b do give he the twenty load of timber and take a traverse without hoe  that he do take away any of the plaintiff timber this there adjudge to be more  than the general issue and with Bulstrode er p this agree h fol and h fol  second point that he ought he e to have traverse the place of the take it  appear h fol that transitory matter may be lie where the party will with this  agree h fol h fol oh h fol as to the custom here plead the same Bulstrode be  not good be against the law in respect of the party who ought to pay this and  so the same be unreasonable his office be to sweep the market and to repair  the street and for this he be to have as before be express and this to have  whether the party do sell or not and therefore this custom be unreasonable and  against the law also in the plea it be urge that the same be good this be in a  trover and conversion and the defendant by his plea entitle himself and show  that elegera quendain officiarium but do not show that such a one to be so  elect be a ancient officer as touch this see the old book of entry fol b in  title action upon the case the plead of the custom for granage he plead here  quod debt is owed modus dainties but do not show how S by the bailiff and  citizen e dyer fol placit custodiam to act sparingly de stow be grant unto one  with a fee of out of the rend issue and bring ofits of the manor of stow he  ought to show for what cause he be to have this fee so here in this case he  ought to have show that he be to have this ration duty but this he have not  here so show Jehu web case coke pars fol touch this e fol there cite the case  of the beadle of a hundred ration ind he here say pro labour his to have this  for the defendant it be urge by Coventry and George croak in answer to the  three matter more Edward whether this be a good custom or not whether any  traverse ought here to have be and whether this plea here do amount unto a not  guilty or not that this be a good custom and whether the party sell or not  sell this be not material he be to have his duty as a officer and this warrant  by h fol in though case of toll good by special custom although he do not sell  and h fol a Elizabeth dyer lol plea the custom for granage and if the custom  be good in these case why not good here in this case now in question be of the  like quality touch the traverse the court at the first have overrule this that  no traverse here needs to be and that the conversion be the point of the  action not the trover here the defendant have well justify the take and that  by a customary interest to himself derive whether this plea here amount to the  general issue or not as to this the special plea here be good and here needs  no traverse to be take in a trover and conversion it be not requisite to show  that they be the plaintiff good at the time of the conversion here it be lie  that they be the plaintiff good it be sufficient for the defendant to confess  that once there be a property in the plaintiff this may be resemble to the  case in e fol in a replevin bring against one for ten cast of herring the  defendant show that they be cast upon his land by the sea and that he have  wreck and so justify the take and this rule to be a good plea Elizabeth fol  the case of fine in a action upon the case for a hauk the defendant plead that  after the hauk be lose the same come first to the hand of one jefferies who  sell the same to one Rowley who give it to the defendant adjudge the plea in  bar sufficient against the plaintiff so here the defendant confess that these  be the good of the plaintiff but show how they come to he as to the exception  take because he do not show that this be a ancient office this he ought not to  do as this case be for the take be not here lie to be ration duty but by  reason of the custom the defendant do not claim this here ration duty but by  custom in the case before remember there the claim be ration duty and  therefore it ought there to be aver that the same be a ancient office but here  the bellman be show to be a officer removable at the will of the citizen and  this be here allege to be the custom of the place and this be not as a office  neither be he here a permanent officer but as the scavenger he do not justify  here as a officer as ration duty to have so much but by reason of the custom  he be to have it the defendant here have plead more than he need to have do  for if he have say debt is owed modus dainties this plead have be good here a  good issue may have be take that he be not bellman so that here be a good plea  and justification and the plaintiff have no cause to demurrer Bulstrode and so  judgement ought to be give for the defendant coke chief justice experience  have make this matter clear that the take be local but the conversion be  transitory Bulstrode er p clear and without any colour if the custom here be  good be may then take and convert where he will conversion be the point and  the trover be but the inducement to the action he show here that he have not  convert the good of the plaintiff but his own proper good when be Apelles S to  himself a property and after convert if this custom have a reasonable  commencement this be not then to be defeat they which do repair bridge and  causeys may have toll by prescription and so for murage and pontage the king  may grant by his letter patent to have a charge and imposition lie but this  ought to be pro good public and also proportionable and so be e if for murage  or pontage to have a imposition assess upon the subject because they have the  benefit of it and in plead of it the best way be to say so custom villoe and  not to lie this by way of prescription but by way of customer the office of a  bellman be removable by libre Assisar if one collect money for a tax of a town  he be to be indict for not employ of it to the public use so here in this case  if he gather this and do not perform with it what he ought to do on his part  he ought to be indict for it and this be very clear and so it be in the case  of all treasurer of county if they do not perform the trust in they repose but  do misemply what they have so receive they be for this to be indict at the  king suit at this time the court do incline that the custom as it be here  allege be good upon the book of h foe the custom for the mayor and commonalty  of Gloucester to have toll of every boat which passes the river that run by  the town a good custom coke the conversion here be the point of the action  curian we will be better advice of this case before we give our positive  judgement herein coke chief justice we have dow but break the case but by this  we have almost break the back of it and as touch toll there be a remarkable  note in Stathams abridgement title to lift plea ultimo Molendinarius de  Matlock tollavit his eastern quod ipse to hear guide de eaden villan to  dedicate in dominic branch p ilmarum to lift to lift this Matlock be in the  county of Derby and so without say any more in this case at this time the same  be adjoiirned ill the next term to bear the opinion of the judge herein  afterward S boundary Trinit James b r the court be move again for their  judgement herein coke the argument of judge be first institute for a threefold  reason the first for satisfaction the second for instruction and the three for  pacification first for satisfaction and this in a double manner first for  satisfaction to the counsel in the cause and second to give satisfaction to  the cl eat bear the reason of the judge induce they to their opinion second  for instruction and this also in a double manner first this serve for  instruction to the judge themselves they be by this put in remembrance of  their book and second for the instruction of student such argument be to they  as commentary upon and of diverse statute and book case three for pacification  and this in a very great manner for by these argument at large doubt be upon  good and mature deliberation determine and suit end and so by these argument  the certainty of the law well know and certainty in all thing be the mother of  repose and these be the three cause of solemn argument by the judge as to the  case here now in question here be a custom allege and this with a  consideration S the bellman to look unto the sweep and the pave of the street  and for this his so do he claim to have of every bag of corn if it contain a  bushel then to have a pint and if more then a quart and this he claim to have  by the custom there use as to the body of this custom it be a very plain case  that this custom here be a good custom and the plaintiff here by his demurrer  have confess the custom and this be also here lie to be so use time out of  mind the case in Elizabeth dyer fol the custom for granage in London Bulstrode  claim to have the twenty part Lichfield the sixtieth part and whether sell or  not sell without all question this be good by the custom the great matter here  in this case be whether the plea of the defendant amount unto the generali  issue of non culp or not clear the plaintiff ought to have the property when  the conversion be lie to be and it be a plain case that the property do remain  notwithstanding the trover thewords in the action upon the case for a trover  be ipse sciens good catalla to be the plaintiff in use suum proprium to turn  round to place here and there this be the point and this case here vary from  the case which we have adjudge here before the question in law here be whether  this custom here plead be good or not the juror will show Bulstrode er p very  little favour to these custom for toll but the rule be ad questionem fact non  to answer jurisperit ad quoestionem law non a swearer this be SAuttleworths  case a woman be possess of certain good lose they afterward she take  Shuttleworth to husband who with his wife bring a trover and conversion for  these good upon this declaration the defendant demurrer in law the property  which the wife formerl have by her take of Shuttleworth to husband be now vest  in he by the law and then he can not join his wife with he in the action and  for this cause it be adjudge against shed t leworth the plaintive who be a  great lawyer join his wife with he in the action which he ought not to have do  and the declaration be bring unto he in other name for his advice therein be  himself draw the demurrer to the declaration because he join his wife with he  in the declaration there be a proverbial speech from the devil the duchy and  Dunnington fee I pray you good Lord deliver I Dunnington fee where many  extortion be use I be very clear of opinion that the custom here be good and  it be also the more reasonable because it be here in his plea express that he  have pave the street and if the custom be good then the take be good and if  the take here be good then by this the property be in he and not in the  plaintiff and so no trover to be bring by he dodderidge the custom here be  good the property be not alter by the take and this be one martins case here  the opinion of Popham chief justice and of the court where one take a load of  hay of another and mingle the same with his own hay and the court incline that  be may take as much again present croak and Haughton justice so be there  another case here one do take the corn of another and mingle the same with his  own corn the other may present take his own corn again because this be so do  of his own wrong and it be plead that he take most of his own corn again coke  I do somewhat doubt of this case for be can take his corn in withernam and he  can do wrong because the other have do wrong as to the exception take to the  plea in bar because it be not show that they be seize in fee of the manor at  the time of the election as to this the same be show very apparent for it be  show that they their predecessor and all those who estate they have in the  manor have use to elect this be good and sufficient dodderidge in h fol a  action of trespass bring for cut down and carry away of certain tree the  defendant plead that long time before c I S be seize of the place where and of  this feoff the plaintive to the use of one Alice by force whereof Alice be  seize and do give the tree to the defendant by force of which gift he do cut  down the tree and carry they away it be there say that though he show that the  plaintiff be once seize to the use of Alice this shall not be intend so still  to continue unless it be so show and therefore it be there hold by the court  that he ought to say that at the time of the gift the plaintiff be seize to  the use of Alice and so it be there hold that if one allege a feoff he be to  say thatthe feoff be seize at the time of the feoff and so of a grant of a  reversion that he have this at the time of the grant and so in the plead of a  attornment that he be tenant at the time of the attornment and so of a grant  of good that he have they at the time of the grant coke a bar if it Bulstrode  be good to a common intent this be sufficient to say here that this be not a  ancient office whereas it be say that now and before the trespass they their  predecessor and all those who estate they have have use to elect such a  officer this be very apparent good by the said and duly elect this be matter  sufficient to show unto we that he be thus elect by the bailiff and it be lie  in facto that he be bellman elect per prediction ballivos fellow citizen this  be clear good and it have be likewise good if he have say that he be bellman  for the life time be general this the customer and he needs not to show how he  be elect so in case of a abbot or a bishop not to show how elect but here it  be that he be elect per preedictos ballivos fellow citizen and this make the  matter of his election to be very clear here this be lie and no more then the  custom do allow of the plaintiff here may have traverse without hoe that he be  bellman but the plaintive by his demurrer here have confess and agree so much  that he be bellman at the time of the take in a bar a common intent be good in  declaration there ought to be a certain common intent Estoppells be to be  certain to every intent here he be a bellman elect per prediction ballivos  this bar here be good and sufficient Bulstrode er p we all agree in this the  bar to be no more then a non culp it rest here upon the take if the custom be  good but the countrev juror will not find for the customer crok the point and  question here be whetl e this custom here lie be good or not whether there be  any falsity in the plea if so then the best way have be to travers this but if  it be insufficient in the point of plead then to demurrer upon it here the  custom as it be lie be good and here be also quid pro quo and so by this the  same be reasonable and the lie gentle have no knowledge of this here the  plaintiff have no cause to demurrer but by this he have confess all and so  judgement you bt to be give against he dodderidge exception have be take to  the bar for not allege that they be seize of the say manor at the time of the  election if not then they have no power to make the election and so the plea  not good the plea in bar here be good this notwithstanding it be here show  that they be seize in fee of the say manor and that they and all their  predecessor have use to elect and they be so seize tempore quo the plead here  be good for when once be allege seize in they of a estate of inheritance by  the intendment of law this shall be say still to have continuance if the  contrary be not show by the other side to this purpose be h fol but here the  defendant have allege sufficient seize both before and after the election and  so the plea be good c exception thpLt the election here be not well plead the  plead be quod debt is owed modus dainties this be well plead for that debt is  owed modus dainties this go not only to the form of the election but also to  the power of the elector which power they dould not have if they be not seize  of the manor at the time of the election and this matter will bring the  election it self into question here it be in case of a bar and if the same be  good to a common intent this be sufficient here they have a feesimple by  intendment debt is owed modus dainties go to the power of the elector and so  good as to the other matter because be do not say that he take it ration duty  but it be say that he take the same ration ind and this be good as to the last  exception it be very plain that be have a property in the corn by he thus take  he may well then convert the same and be have here a property if the take be  lawful and if the custom here be good then be the take lawful and the  conversion justifiable and so in this case here be a good bar plead the custom  good and the take and conversion justifiable and judgement to be give against  the plaintiff Haughton the bar here be good though he do not say it be ancient  villan if so use this exception not material for it can be time out of mind so  use unless that the town have be of so long continuance here if so use time  out of mind to have a bellman elect he needs not to show the manner how as the  manner of the consecration of a bishop needs not to be show but to run  together his debt is owed modus this be good and sufficient and he needs not  to show the Bulstrode manner and circumstance of the election as to the point  of seize he have show this very plain and sufficient this be very well allege  the most material exception be because that he do not show here the take to be  ration duty he have this here as a officer but he show here that time out of  mind such a bellman have use to sweep and to pave the street and in  consideration ind pro labour his he be to have so much and this be so show by  he do amount unto as much as if he have say he take this ration duty for of  necessity the same ought to be so take by he as to the plead also he be not to  plead non culp if the matter may prove doubtful to the jury but to plead a  special plea otherwise it be where the matter be plain and familiar to the  jury and well know unto they as to a seize and a die seize here the plea in  bar place for seal or signature good and the matter well plead the custom good  and so judgement to be give for the defendant coke as to the exception for  omit ration duty this have be well answer here when he show the bellman to  take so much be show that he be elect bellman pro labour his take too much and  not ration duty he be to pave and to sweep and to be the crier these be the  title of the bellman as to prescription and customer this difference be to be  observe a prescription ought to stand upon reason but a custom can have  commencement but by parliament and not by grant as burrow English and  gavelkind no reason be to maintain these but only by Act of parliament and so  the whole court clear of opinion that the bar be good and so likewise the  custom here and so by the rule of the court jud lie be iven for the defendant  and so enter quod to express grief nil to take in hand per billam Bulstrode er  p