case Morgan case custom where it be well plead where amerciament be to be  afeard where not S c pale yellow Eq Rep in trespass for take his cattle c the  defendant justify as servant to one Morgan set forth that Morgan be seize of  the manor of d in fee to which a courtleet do belong c and that time out of  mind there have be a custom that who to hold of a freehold tenement and who be  a resident and a inhabitant within that manor ought upon notice or summons to  appear personal at the say courtleet three time in every year videlicet at the  feast of saint Michael and saint Hilary and at easter and for default of  appearance at the say court to pay to the steward of the modern report er p  say leet to the use of the lord seven shilling for every default and that if  he do not appear at two of the say court but do appear at the three then to  pay a essoinpenny only and far that if any such tenant be summon modern report  to be of the grand jury shall not appear that then he shall be amerce seven  shilling by the steward and that the bailiff of the manor by warrant from the  steward may distrain for such amerciament and sell the distress c then he set  forth that the plaintiff be summon to appear at two several court and make  default and that he be likewise summon to be of the grand jury c but do not  appear at that court for which default he be amerce twentyeight shilling and  because it be not pay Richard Hugh steward of the say leet make his warrant  direct to the defendant to levy the same by distress and sale of the plaintiff  good army pron  interrog  he distrain the cattle c and sell they and pay  twentyeight shilling to the steward for the use of the lord of the say manor  queen be eaden transgression c and upon a demurrer to this plea several  exception be take to it first that the custom be void because it be lie too  general second that it be void because it be for the steward to amerce without  any affeerment three that here be a double amerciament for one and the same  default at one court videlicet in not be of the homage and not appear at that  court as to the first exception this custom be void because it be lie too  general videlicet that who to hold c use and ought to appear without exception  of the quality degree or sex of person whereas several be exempt from appear  and attend at the leet both by the commonlaw and statute of this realm as  infant under the age of twelve year and this be by the commonlaw   light a and  ecclesiastical person be exempt by the statute of marlbridge Henry c b  videlicet archbishop bishop c be not to appear at the sheriff turn and  consequent not at leet which be derive out of the turn and if they shall be  distrain for any amerciament c for not appear in the leet they have a writ  upon the statute by way of privilege Fitzherbert n b Inst register c for as  they be not oblige by law to appear at leet so they be not amerciable for not  appear therefore this custom be general and not set forth these exemption be  void and can subsist against the statute of marlbridge which be introductory  of a new law and destroy all custom and prescription against it   light a roll  Abr W Jones d modern report second this custom be void because it be lie for  the steward to amerce without a affeerment and this be direct against great  ChartaCap e by which it be enact that amerciament shall be assess by lawful  man of the vicinage I e shall be afeard by those lawful man appoint in  courtsleet upon oath to settle and moderate the amerciament of such who have  commit fault arbitrary punishable and have no express penalty express by any  law or statute so that to affeer be proper to tax or to reduce a thing to a  certainty by person on their oath and ought to be per pares but this be a  certain amerciament impose by the steward without any affeerment and be  therefore void three this be a double amerciament for one and the same default  at the last court for the plea set forth that the plaintiff be summon to be of  the grand jury do not appear for which he be amerce seven shilling and he be  amerce seven shilling more for not appear at that court which be double and  exceed the custom to which it be answer as to the first exception thus the  custom be good and well plead though the exemption be not set forth in the  plea for that the defendant be not oblige by law so to do but the person  distrain be to show that he be exempt from such distress if he be real entitle  to any such exemption for the custom be law loci and if there be any exemption  by virtue of the custom the plaintiff ought to have show it now to instance a  parallel case upon disband the army a Act of parliament be make give privilege  to the soldier to exercise their trade modern report er p anywhere in England  see Geo c Geo c and the Geo sess c a now suppose that there be a custom in the  borough of h that no person shall exercise a trade therein unless he be free  of that borough and a action shall be bring against a soldier upon a bylaw  find on this custom certain the custom may be lie in general and the exemption  must come on the soldier side for it be not require either by the statute or  commonlaw that exemption shall be set out in plead of custom but the party who  be to have the benefit of a exemption must set it forth and show that he be  not within the custom by reason of the exemption so where a custom be allege  to distrain anything within such a honour it be object to be too general side  b because several thing be not distrainable but be privilege and exempt from  distress videlicet averia caruc and good take in execution by the sheriff and  workman modern report tool c   light term Rep pale yellow this c and the book  tell it be not necessary to set forth such exemption because it be immaterial  and will make the plead too long therefore the person exempt must show it and  that he be not within the custom by reason of his exemption as to the second  point it be argue that this custom be good to amerce without a affeerment for  though it have be object that it be contrary to great Charta and that the  general rule of plead in such case be to set forth a amerciament and that it  be afeard yet notwithstanding great Charta and that rule of plead there may be  a amerciament by custom to a certain sum for this statute be make in  affirmance of the commonlaw and therefore though it be in the negative  videlicet that no freeman shall be amerce yet there may be a prescription or  custom against it this be the Lord coke opinion in his first institute   light  a d videlicet where a statute in the negative be in affirmance of the  commonlaw a man may prescribe against it as for instance by the statute of  great Charta it be providedCap a that leet shall be hold twice a year only  videlicet after easter and Michaelmas yet a man may prescribe to hold they  often and at other time because that statute be but a affirmance of the  commonlawPlowd b beside peer of the realm be within this statute as well as  commoner and the amerciament of peer be not use at this day because it be  reduce to a certainty by custom videlicet a duke to ten pound and other to  five pound and such custom be good by the same reason a amerciament may be  reduce to a certainty by custom and if such custom be good then there can be  any occasion to affeer a amerciament because to affeer be only a taxation  reduce that to a certainty which be uncertain before but it be absurd to say  that a thing shall be reduce to a certainty which be certain in itself before  the affeerment so that the reason of affeering fail in this case if the sum be  reasonable but if it be unreasonable then the custom be void and can stand it  appear by the old book yearbooks Henry pl Henry pl c that custom to have  particular sum be good as a custom that the lord of a manor shall have three  pound for every poundbreach this be good against the tenant though not against  stranger so in the principal case the sum be reduce to a certainty and the  custom charge the tenant but not stranger a man may prescribe to have a  certain sum of money from any person modern report find guilty of a affray in  a leet and such prescription be good this punishment be here call a  amerciament but it be not proper so but a fine impose by the court whereas  amerciament be always by the jury now great Charta mention amerciament for  that reason they be to be afeard for the judgement in a amerciament be general  videlicet quod sit in pity and afterward upon estreat direct to the coroner  they be afeard but a fine be not to be afeard because not mention in that  statute which be the foundation of all affeerments and there be authority in  point yearbook Henry pl bro amerciament d that a amerciament impose by a  steward of a leet which be in nature of customary fine need not be afeard  though the custom have not ascertain the sum therefore there can be no need of  a affeerment where the sum be make certain by the custom as to the three  exception that the plaintiff be double amerce for one and the modern report er  p same fault it be not so and this appear by set forth the custom videlicet  that every tenant who shall not appear c be summon to be of the homage shall  pay seven shilling and if be do not appear at two of the say court and appear  at the three be shall pay a essoinpenny but if he do not appear at the three  and pay the essoinpenny he shall then pay seven shilling for each of those  default but the custom be not lie to amerce for nonpayment of the essoin penny  for that be not to be pay but where the party neglect to appear at two court  and appear at the three but here be a total neglect for the defendant do not  appear when he be summon to be of the homage nor at two other court nor at the  three court the custom be that if he do not appear at that court and pay the  essoinpenny then for every default he shall pay seven shilling must be  understand for every default in not appear c and not for nonpayment of the  essoinpenny so that this be not a double amerciament for the same default but  several amerciament for several default in not appear c the court it be agree  that this custom will have be well lie if the exemption have be set forth and  not so general that who lenens shall appear c but it be certain that such  exemption which be by the commonlaw as of infant under twelve year and woman c  be never yet set forth in plead of custom but it have be object that by the  statute of marlbridge clergyman be exempt and that this custom can modern  report prevail against that statute which be very true but this do not alter  the method of lie a prescription or custom in plead which ever since the  statute be make have be lie without mention any exemption but general as in  this case it be true if any person have be exempt by the custom itself such  exemption must have be set forth in plead because the custom be entire but it  be not necessary to set forth any other exemption therefore this custom be  well lie the statute of marlbridge never intend by those exemption of  ecclesiastical person to destroy law loci but those law still remain as they  do before and person who will have any advantage of they must plead they for  it be the nature of exemption to be exception out of the general rule and it  will be not only informal but unreasonable to set they all forth in plead so  as to the first point the court be all of opinion that the custom be well  plead as to the second point it be agree that amerciament be to be afeard  unless they be in nature of a fine and that there be no occasion for a  affeerment but where the amerciament be discretionary which be not this case  for here the sum be ascertain by custom and the steward can increase or  diminish it and therefore this amerciament ought not to be afeard first  because it be in the nature of a fine for a contempt second because the custom  have ascertain it and it be not discretionary and of this opinion be the chief  baron and two more but the other baron differ for he be of opinion that if the  custom be abrogate by great Charta then this amerciament must be afeard and  that the custom be abrogate by that statute by which it be enact that all  amerciament shall be afeard per pares it be true fine be not within this  statute but amerciament be and a fine be a ransom from imprisonment and  wherever a leet may imprison it may assess a fine as a price to redeem the  party from a imprisonment and a commitment always follow a fine and therefore  a to take in hand lie for fineable offence but in amerciament where the  judgement be that the party shall be in pity as it be in this case there they  be to be affered it be true the amerciament of peer be make to a certain sum  but it be by order of the house of lord and this be to prevent the frequent  application to the house when a modern report peer be to be amerce but the  principal case be only a nonfeasance and no breach of the peace or contempt of  the court the steward can set a fine for it and if so then it fall back to a  amerciament and must be afeard per judgment Parium as to the three point that  here be a double amerciament for one default the chief baron be of another  opinion for amerciament be in two instance videlicet for a default in not be  of the grand jury and for a default in not appear at that court and where a  man be bind to appear in two respect and do not appear those be several  default modern report er p and another baron be of the same opinion videlicet  that it be not a double amerciament for the same default for if a officer who  ought to attend the court by virtue of his office and likewise as a  grandjuryman shall make default he be to be fine in both respect and in one  there be no consideration to he have of the other therefore notwithstanding  this objection the plea be good but two of the baron be of opinion that this  custom be void for the reason follow videlicet every custom must have a  reasonable commencement which this custom have not for it be in time  immemorial seven shilling be too great a sum to pay for such a default beside  it be unreasonable because it involve every person in it when some person may  have a reasonable excuse to be absent as for instance a sheriff may be call to  attend on the king person c Adjournatur the court take time to consider of  this case and in Hilary term Geo Gilbert chief baron deliver the opinion of  himself and the other baron that this custom be not good for the reason assign  S c pale yellow e r a trinity term the ten of George the first in the king  bench sir John Pratt Knt chief justice sir Littleton powis Knt sir John  fortescue aland Knt sir Robert Raymond Knt justice sir Philip York Knt  attorneygeneral sir clement Wearg Knt solicitor general