cccxv ware and knight case toll prescription in a action upon the case the  plaintiff declare that whereas Lostock parcel of the manor of e in the county  of Suffolk be a ancient town and ancient demesne of the crown of England and  that time out of mind c all the man and tenant of ancient demesne ought to be  quit of toll in all place within the realm for they their good and chatter c  and whereas the queen by her letter patent the ten of September the nineteenth  of her reign command all mayor bailiff constable c to permit and suffer the  man and tenant of ancient demesne to be quit of toll murage and other exaction  throughout the whole realm and whereas the plaintiff be a inhabitant and  tenant in Lostock aforesaid and such a day and year carry his good to Yarmouth  in the say county the defendant not ignorant thereof have take and carry away  a cable of the plaintiff good of the value of eight pound for toll to his  damage etcetera the defendant plead by protestation that Lostock be not  ancient demesne and by protestation that the tenant of ancient demesne ought  not to be quit of toll be say that the town of Yarmouth be a ancient borough  and that they have be incorporate by the name of bailiff and burgess c and  that they have have time out of mind c a officer call a waterbaly and that  time out of mind c they and their predecessor have have and take toll of the  tenant and inhabitant of Lostock for any of their good bring thither to  merchandise with and if it be not pay they have use time out of mind to  distrain for it by their waterbaily and say that the plaintiff such a day  bring to the say town of Yarmouth two thousand weight of cable rope to sell  for which there be due for toll six penny for murage six penny for thronage  four penny and the defendant be a waterbaily demand of the plaintiff the say  sum which he refuse to pay for which he take the say cable nomin severity for  the say thronage c Golding for the plaintiff the defendant have not set forth  in himself any authority to demand the duty for he show that they have use to  distrain by their waterbaily but not that they have use to demand it by he and  it may be that they have several officer one to demand it and another to  distrain for it and always when a man demand a thing against common right he  be Leonard to show authority express in the whole and as to the matter in law  sure the prescription to have toll of the tenant in ancient demesne it can  have a lawful beginning as h the lord of a manor say that he have have a pound  within his manor time out of mind c and that be have use to have of every one  who break his pound three pound the same be a void custom to bind a stranger  for it can have a lawful beginning and see h b one prescribe that if any  cattle be take in such a place damage pheasant that he may distrain they and  put they in pound until the owner have make amends at the will of he who  distrain they the same be a void prescription for it can have a lawful  beginning and time can make such a thing to be good the king may grant tollage  pontage c but not to the prejudice of another as e the king can grant to one  thoroughtoll to pass by highway for it be a oppression to the people for every  highway shall be common to every one see e grant and here the tenant of  ancient demesne be quit of toll by the commonlaw and not by prescription which  see Fitzherbert and such tenant have a inheritance in such liberty which the  king by his grant can take away and then if it can have a lawful beginning it  can be good by prescription also this prescription be against the commonwealth  therefore it be a void prescription and the commonwealth be much respect in  law and thing which in themselves be justifiable by reason be not justifiable  if they be injurious to other as e e Leonard er p fisher may prescribe to dry  their net upon the land of other and none can prescribe against such a  prescription so here all land which be ancient demesne be hold in socage so as  they be all husbandman who manure their land for the sustentation of the king  subject to which they have such privilege to be the better able to follow  their husbandry and therefore to disable such profitable subject and to  prescribe against these liberty and privilege be to take away the name of  ancient demesne and to make their land at the commonlaw Hobart contrary to  show the authority to demand be not necessary for our prescription be not upon  demand to distrain for the common officer have authority to demand for they  ought to demand it who ought to take the thing demand and those be the bailiff  and burgess and then when their waterbaily do it it be as much as if it have  be do by the corporation which see e the mayor and commonalty of Lincoln bring  a action of covenant against the mayor and commonalty of Derby and declare  that the mayor and commonalty of Derby have covenant with the mayor and  commonalty of lin that they shall be quit of murage pontage custom and toll  within the town of Derby of all merchandise of those of the town of lin and  further declare that I W and h m two burgess of the town of Derby have take  certain toll of certain burgess of the town of lin c exception be take to this  declaration because they have allege the take of such toll not by the  corporation of Derby but by and h two of the burgess of it in which case the  plaintiff may have a action of trespass against the burgess for the act of any  of the corporation be not the break of the covenant make by the commonalty but  it be not allow for if the common officer of the town do any thing for their  common use as it be intend such thing be do by the officer it be reason all  the town be answerable for it and the whole commonalty by intendment can come  at one time to take c and so in our case for as much as the corporation ought  to make the demand and their common officer do it to their use the same be the  act of the whole corporation as to the matter in law we have plead special  that we take toll only of those thing which be bring by sea by merchant and  not otherwise and I conceive that tenant in ancient demesne be not discharge  of toll for Leonard all thing but only for such which arise out of their  tenement or be buy for their tenement or family there and their sustentations  accord to the quantity of their tenement h h they shall be quit of toll of all  thing sell and buy come of their land or for the manurance of their land and h  tenant of ancient demesne ought to be quit of toll for ox or beast buy and  sell for tillage and manurance of their land and for their sustenance and  maintenance of their family and for put they to pasture to make they fat and  more vendable and so to sell they c and see accord f n b d see crook Elizabeth  a judgement be give for the say party for the plaintiff but there the  plaintiff declare general and the defendant do demurrer in law general  wherefore by common intendment the cattle be buy for the tillage and manurance  of their land for there it be not show as it be here that it be to merchandise  also we have justify not only for toll but also for trouage and that they have  not show and therefore as to the trouage our justification be good enough for  their privilege shall not be construe to extend beyond the word of it as the  privilege of the law be that if I leave my horse at a smith forge to be shod  there my horse can be distrain but if I or my servant take the saddle from the  horse back and lie it in the smith forge the saddle may be distrain then here  be two custom meeting together and to begin together and the one be not before  the other then the particular custom shall stand and I conceive that by the  writ de exoneratione sect Fitzherbert n b b the tenant in ancient demesne have  not always such privilege for the writ say quod si ita sit then c and nisi  Self the dawn he that goes before to hold de eoden manor venire to become used  time drive back and see the same matter in the register and afterward  judgement be give quod to express grief nothing to take in hand par billam for  the justice be of opinion that the tenant in ancient demesne shall pay toll  for their merchandise cro Leonard er p mich Elizabeth in the king bench