coke Report31b FOISTON v CRACHROODE mich Elizabeth in the king bench SC cite  send for sand a l ld raym salk salk Inst two pale yellow ten Bl Com Cru dig  Selw n p that edit vin Abr copyhold p pl u d pl Com dig copyhold king p  prescription h Bac Abr copyhold f a custom for one copyholder to have common  or estover c in his lord soil be good she may allege that within the manor  there be a custom from time immemorial that all customary tenant of certain  message have common in such a place c for where a copyholder claim common in  the soil of another he must lie a prescription in the lord but where he claim  common in the soil of the lord he can prescribe in the name of the lord and as  he can prescribe in his own name the law allow he to allege it by way of  custom difference between prescription and custom the former be personal and  always allege in the person as in a man and his ancestor or those who estate  he have the latter be local and serve for the inhabitant of a town c or as to  insensible thing as to devise land the case be that a copyholder of certain  tenement call Collins parcel of the manor c in plead allege quod infra manner  pillage ankle to have nor a toto tempore pron  interrog  opposite direction  memory man non step forth to have custom videlicet quod who to hold pillage  property peremptory or urgent call Collins have use to have common in such a  place parcel of the say manor and if the custom may be allege within the manor  and apply to but one single copyhold be demurrer in law and it be adjudge that  such guardian in socage grant a copyhold in reversion it will bind the heir  though the reversion be not execute during their interest id ibidem key v bay  cro Elizabeth roll Abr Shapland v radlin roll Abr but it have be say that a  lord have a particular estate can grant a copyhold in parcel or demise part  and retain the residue himself per Popham in gay v key cro Elizabeth say queen  ED l Acc pale yellow ten Watk Copy vin Abr copyhold r pl Com dig copyhold f so  if the lord of a manor mortgage the manor in fee to a and afterward purchase  copyhold hold of the manor and take surrender of they to himself in fee they  shall enure to the mortgagee do d Gibbons v pat dougl so if tenant for life of  a manor purchase a copyhold and take a surrender to himself the property  become parcel of the manor in equity as well as at law saint Paul v viscount  Dudley and ware Ves so in roe d hale v Wegg it be hold that under a devise of  the manor copyhold premise afterward escheat or purchase by the lord and  surrender to he arid his heir pass as parcel of the manor and this  notwithstanding a subsequent demise by the devisor from year to year t r ED c  Syderf pl   light b coke report b er p a custom as well for the form a as for  the matter of it be good b for first the copyholder in his own name can b  prescribe for the weakness and baseness of his estate c but if he will  prescribe he ought to prescribe in the name of the a   b hob Cr James Cr  Elizabeth a Acc Vaugh ld raym winch Ent   Ent a light Plac Lutw sand a ill  Selw n p Chit plead vin Abr copyhold p pl p e pl Com dig Copy hold p Bac Abr  custom a presumption h for a prescription may be lie by way of custom where  the necessity of the case require it thus if a copyholder claim a right of  common out of the manor he must lie a prescription on the lord but where as in  the present case he claim common in the waste of the lord as he have strict no  inheritance in the land but be only tenant at will and as a prescription must  always be lie by way of a and estate which he can allege not be tenant in fee  for in strictness the feesimple be in the lord therefore the law allow he to  allege it as a custom in the occupier of such a estate post   b can tempt  Hardw so where a man claim only a discharge in his own soil or a mere easement  in the soil of another he may lie it by way of custom ibidem so matter of  personal privilege or exemption may be lie general to express the nature and  extent of such privilege either as have respect to place as all the citizen of  London hob or to condition as all sergeant at law all atorneys c Ventr Bac Abr  custom a as to plead right of common by a copyholder in general see the note  to sand that in plead copyhold it be not sufficient to state that the tenement  be grant by copy without say ad will domini Lutw Lutw cro car Inst a I I sand  and it must be express or find to have be demisable by copy of court roll time  out of mind or it will not be adjudge copyhold roe v Newman will but the  omission of ad will domini in a declaration be aid after verdict salk ED b  copyholder be not entitle by general custom to common on the waste of the lord  but by special custom they may have common within the lord waste or in another  solon infra post   b Com dig copyhold king so copyholder may by custom have  the sole pasture in exclusion of the lord Hoskins v robin sand and where  copyholder claim common or the several pasture in the lord soil it be not  necessary to show what estate they have in their tenement for whether it be  for life for year or in fee the common c belong to they for the time SC nor be  it requisite to say that the common or other profit belong to the customary  estate for as all the precedent be tanquam ad property svan customari spectant  it be hold sufficient to plead it so though in strictness when common c be  claim within the manor on the lord soil it proper belong to the estate and if  the copyholder enfranchise the copyhold the common c be lose but where be  claim it out of the manor it belong to the land and not to the estate and it  be not lose by the enfranchisement of the estate Crouther v Oldfield salk ld  raym sand Barwick v matthews taunt marsh ante two a l and a custom for one  copyholder to have common in his lord son be good for all the other copyholder  may have forfeit their estate above a pale yellow ten and see send for Cru dig  a vin Abr copyhold p pl u a pl Com dig copyhold king Bac Abr copyhold e see  also ante two p a n l ED b Doct p more b Cr James Cr Elizabeth   b kelw a Mod  c Acc Lutw salk sand a dougl Inst two oh Bl Com Cru dig Selw X p vin Abr  copyhold p pl Com dig copyhold p prescription h Bac Abr custom a sup n a so a  tenant for life or year or at will must prescribe under cover of the tenant in  feesimple for as prescription be always beyond time of memory it will be  absurd that those who estate commence within the memory of man shall pretend  to prescribe for any thing Bl Com for the form f c aim by prescription in the  lord see   Ent winch Ent lib Plac Lutw Selw n p Com dig copyhold p ED coke  report a er p lord of the manor know to say that the lord of the manor and all  his ancestor and all those who estate he have have have common in such a place  for he and his tenant at will c as appear in h a c and that shall serve when  the copyholder claim common or other profit in the soil of a stranger d but  when the copyholder claim common or other profit in the lord soil then be can  c prescribe in the name of the lord e for the lord can prescribe to have  common or other profit in his own soil but then the copyholder forasmuch as he  can prescribe neither in his own name nor in the lord name be must of  necessity allege that within the manor be such a custom as in the case at bar  and as when the copyholder claim common or other profit in the soil of the  lord he ought to claim it by custom of the manor so when he claim it in the  land of another which be not parcel of the manor be can claim it by the custom  of the manor for the custom be quod infra manner ankle to have c custom and  therefore he can coke Report32a apply it or by force thereof claim any thing  out of the manor as be do Elizabeth a dyer and therefore there it be clear  mispleaded but in such case he ought to prescribe in the name of the lord  notam a good b difference between prescription which be personal g and always  make in the name of a person certain and his ancestor or those who estate he  have and custom which be local and allege in no person but that within a manor  c be such custom h and that serve for they who can prescribe in their own name  nor in the name of any person certain as inhabitant of a town I c as d Acc  sand a Selw n p Chit plead n vin Abr copyhold p pl Com dig copyhold p Bac Abr  prescription a and see book cite in the last note ED c Doct plan Cr Elizabeth  more   b Cr James   e Acc sand a Cru of b Selw n p vin Abr copyhold p pl p e  pl Com dig copyhold p prescription h and see the book cite n a sup ED a dyer  pl   Leon b hob   b do b   light b   Cop c g Acc salk Bl Com Cru dig Com dig  prescription h prescription to incorporeal hereditament by immemorial usage be  of two sort either it be a personal right which have be exercise by a man and  his ancestor or by a body politic and their predecessor in which case it be  call a prescription in the person or else it be a right attach to the  ownership of a particular estate and only exercisable by those who be seize of  that estate and in this case it be call a prescription in a and estate Inst b  two Cru dig Bl Com as to title by prescription in general see d ibidem Inst  two and the note there ED h Acc Inst b two post     Bulst roll Rep Bl Com Cru  dig another difference between custom and prescription be that the latter must  always have a legal origin it must be of such thing as may be create by grant  reservation or deed whereas it be not always necessary that the cause or  consideration on which the former be find shall appear  post   b Ventr Cowp  dougl hence the corporation of London be entitle to a customary duty on corn  import a custom that factor free of the corporation shall receive to their own  use that part of the duty which arise from corn consign to they as factor be  hold to be a good custom though neither the commencement nor consideration of  such custom can be trace Cocksedge v fanshaw dougl see further as to the  manner of lie a custom and the difference between allege a thing by way of  custom or by way of prescription post   b hob cro Elizabeth Poph sty lev lev  vent Carth Mod Lutw Com dig prescription h Bac Abr custom h ED I a custom that  every inhabitant within any ancient message in a ancient will by reason of his  commorancy therein have have common in the place in question be bad for  inhabitant unless they be incorporate can prescribe to have profit coke report  b er p appear in e ass mark Br prescription e dyer allegation of a custom  shall serve when it be refer to a thing insensible know that all reach land c  be devisable king or the like Vid ass c and because in the case at bar the  custom may have a lawful beginning see that one copyholder only shall have  common or estovers or other profit in the land of the lord and that in many  manor some copyholder have common in one waste of the manor and other in  another several so that the custom can be apply to all and because all the  other copyholder may be determine or extinct l for these reason it be adjudge  that the custom be well allege in the case at bar as well for the manner as  for the matter and such custom for one copyholder to have common of estovers  in the lord wood parcel of the manor whereof the copyhold be hold be adjudge  to be good m pasch Elizabeth as it be say in this case vide e mark dyer e dyer  and because it have be often say before that the custom of the manor be the  soul andlife of the copyholder it be necessary in my opinion to add this case  to show how he shall allege the custom and when and how he shall prescribe n