Bulstrode KENNYCOTT plaintiff against bogen defendant enter Trinit James b r  rot Yel in a writ of error to reverse a judgement in trespass in a writ of  error to reverse a judgement give in the c b in a action of trespass bring for  take of his good the defendant by way of justification set forth the general  custom of the land for the take of prisage for the king and show that sir  Thomas Waller be and be chief buth r to the king and that he be then at the  time of his take his deputy and he take the good the wine for prisage for the  king and so in this manner justify the plaintiff reply de son tort Bulstrode  er p demesne and take a travers with a without hoe that there be any such  custom to take prisage for the king and so a issue be join upon the customer  and find against the customer that there be no such customer and judgement  give accord and upon this a writ of error here bring suppose that this ought  to have be try by the judge of the commonlaw and not by a jury by the country  and if by a jury this be a general customer those of Exeter where the trial be  have be not fit person to try this customer and so the trial erroneous note  that this case for the take of prisage be former in another action and between  the same party argue termin mich James b r where Kennycott be plaintiff  against Bogen in a trover and conversion of certain good where he plead in bar  the generali custom of the realm for prisage for the king and show that sir  Thomas Waller be chief butler to the king and that he at the time of the take  be his deputy and so justify the take of the wine to this plea the plaintiff  there demurrer diverse exception there take to the plea it be show that he  ought to have prisage of all the wine load beyond sea and unladen here he show  that the same be load beyond sea but do not show that it be unladen here and  it ought to be all unladen but this be not so show in the plea a second  exception he show that of every ship load beyond sea he ought to have for  prisage I tun before the mast and another behind the mast but do not show in  his take that he take they in this manner he ought to have show the manner how  they be take exception the plaintiff say that the defendant do take the good  and convert they to his own use the defendant plead that he take they to the  use of the king but do not travers the conversion to his own use a four  exception in his plea he show that he take the same as lawful deputy to sir  Thomas Waller chief butler to the king and do not show how he be his lawful  deputy which he ought to have do for the defendant it be answer that the plea  be good as to the first exception because he do not show that the ship be  unladen it be true this be not show but it be sufficient to show how the fact  be for he do unload tun and a half at one place and at another place and the  king have no right to the prisage till be unload and that so he take both  together for Bulstrode the king at the first place the king be to have two of  twenty to the exception where the conversion be confess and justify there  needs no traverse as to the four exception if he take here as his servant alid  by his command this be good here he do this as his deputy only and a deputy  claim not any thing in his own right and therefore he needs not to show how he  come to be his deputy but if he have take this as a assignee there he convey a  interest to himself and there he ought to show how he be a assignee but here  in this case he have nothing to do but as a servant and therefore his plea  here be good without show how here all be unloaden half S at one place and the  other half at another place this be thus show be good and sufficient to  entitle the king unto two tun per curian Fleming chief justice if load twenty  tun beyond sea and bring they hither as soon as he come and open the ship make  his sale and this enter in the merchant book and then break the bulk be may  then present take the prisage for the king S one tun before the mast and  another behind the mast and this he may well take before the ship be unladen  wheresoever he break the bulk first there he may present take the prisage for  the king and he be not to follow he to any other place to attend his unload  but he be to take the prisage for the king present at the first place where he  break the bulk of the ship and here he bring tun from beyond sea of they he  unladen he may present take two tun for prisage for the king William and  Yelverton justice agree with he herein otherwise it may be V prejudicial to  the king and this way the king may be deceive the whole urrit agree herein  clear as to the matter of the conversion the defendant ought not here to  traverse this for he have show and convey by his plea a good and slifficient  title to himself for the king and if any deceit be use by such a subject as to  take this to his own use he be then to be punish for this by the king for that  this belong to the king the whole court agree all in this and that the plea in  bar be good Bulstrode er p William justice here it be matter in law whether he  may here seize or not he may this do for the king and not to traverse this as  to the point of deputy I somewhat doubt of this he be not to be make a deputy  but by write and therefore this ought to be show how that by such a write he  be make his deputy here the plead be that he do this as lawful deputy to sir  Thomas Waller and also per he preceptum sufficient deputy to step out per he  preceptuni take the same the court overrule this and all the other exception  that the plea in bar be good and that the plaintiff have no cause to demurrer  and so by the rule of the court judgement be give and so enter for the  defendant quod to express grief nil to take in hand per billam William justice  doubt of the matter of deputy and of the plead of the same that he ought to  have show how he be make his deputy but the rest of the judge all against  bbimin this this judgement be thus give against the plaintiff he do afterward  in the c b bring this action of trespass as before and issue join and try upon  the custom for prisage and upon trial find no such custom to be and upon this  the writ of error here bring to reverse this judgement that this custom be not  well try be try by a jury whereas the same shall have be try and determine by  the judge of the commonlaw and if by a jury yet not by a jury of that place at  Exeter where the same be try it be urge for the plaintiff in this writ of  error to reverse the judgement that this shall not have be try by a jury and  that it appear coke pars fol b a in the case of the abbot de Strata Mercella  that matter in law ought to be try and determine by the judge of the law as  matter in fact be to be try by the juror here the matter in question be matter  in usage and this be a general usage for the take of prisage for the king a  ancient usage and the ancient law of the land h Ritz title prerogative  Bulstrode plea notam quod law Anglioe custom the same be quod a whoever garlic  feoffatus to be dumb yet a lord ring to some place tempore feoffatus to be pro  tenenient quod holding per slavery miletare quod dominus king to have  custodiam all the earth property tam de feoffamento alloruin how de  feoffamento to appropriate and this so be agree by the whole court clear and  so adjudge accord by this it appear that this ancient customer be take for the  law of the land and the same be to be try by the judge of the law and not by a  jury as here in this case it be and it appear in Plowdens commentary in the  case of hynes fol that royal i by the law belong unto the king and to have a  jury to try matter in law as they have do in this case this be error coke pars  fol b in comb case that a general usage which be so per totan England this be  the commonlaw as for a copiholder to surrender or to make a lease for one year  without licence this de common jure he may do and this general usage be the  commonlaw James in b r Dane plaintiff against Medhurst in a action upon the  case bring for the kill of a mastive dog the defendant plead a special plea S  that he be a warrenner and find this mastiff in his warren kill of his cony  and therefore he kill he and show the general usage of warrener to do so and  this be here adjudge to be a good plea and a good justification upon this  general usage to be so throughout the whole realm as to the main matter here  of prisage this be a ancient duty due unto the king this take of prisage be a  ancient duty and revenue belong to the crown of England at the commonlaw if  the law give a right to a thing it also give a fit remedy to come unto the  same and this appear coke pars fol a in sander case if a man have i occult  within his land and leas his land and all i within it here the lessee may dig  for they for that when some to some degree to go away to go away to see id  without quo res self be non to be able and with this agree e fol it appear by  the statute of e rastall title estreat fol touch the form of the estreat into  the exchequer by the king chief butler of the provision by he make of wine and  likewise of prisage by he take and this so continue till the same be farm out  in the time of king h and h term mich e fol plea old print the rchbishop of  York case in a quo warranto bring against he for take of prisage and his claim  thereunto where it be say that prisage be a ancient duty and revenue in the  king as king and the butler of the king be to certify the estreat into the  exchequer of the same so that by this it appear that this be Bulstrode er p  matter of law and of the king prerogative and this triable by the court by the  judge and not to have a issue join upon it and therefore the trial of this by  verdict be error and so to be reverse e fol the prior of Herlons case which  seem to make against this but do not the prior there io in issue upon the  customer that there be no such customer this be try by verdict and find  against he upon this a writ of error be bring and the judgement affirm but  this be a special not a generali customer and for his advantage and therefore  not to be reverse but here it be otherwise be a generali customer or usage to  have this prisage for the king but admit that this matter be triable per pais  then it be to be consider whether they of Exeter be to try this e fol fol b a  obligation fait date beyond sea in a trial it be to be lie that it be make at  some place within the realm here it appear to you general this prisage to be  pay and take for the king croak this prisage be a ancient duty which the king  usual have have dodderidge prisage be a ancient duty which the king have  always have if there be tun or above in the ship the king be then to have for  his prisage one tun before the mast and another behind the mast and this be a  generali law by which he be to have this afterward as appear by the statute de  cousin unia great the king do grant for to pay but two shilling for prisage  and so Bulstrode this case be adjourn for further argument afterward term mich  James b r this case be move again the same be that Kennicott bring a action of  trespass in the court of c b against Bogen for his wrongful take of two tun of  whitewine Bogen to this plead that long time befoi e the king time out of mind  be to have prisage which be always answer to the king and to his farniors in  this manor S of every tun one tun and of every tun and show that the plaintiff  bring infra portun Le c a ship with tun of wine and do there unladen the  same and that be as servant to sir Thomas Waller chief butler of the king for  the prisage of the king for he do then take the say two tun of wine the  plaintiff reply de in an unjust manner svan not common with others without  tali causan upon this they go to issue and trial a verdict and judgement give  against the king and upon this a writ of error now bring to reverse this  judgement this be matter of law and so not to have be try by a jury Yelverton  solicitor of the king that which be the custom of England be not to be try by  a jury e fol in trespass for dig his ground the defendant show a custom in  defence against the enemy to make trench and bulwark this custom be  thecommonlaw and be not to be put in issue to be try by a jury because it be  the law of the land and with this agree h dyer fol in Haleverels case and h  fol b so in this case here this custom allege for the prisage be the law of  the realm and therefore the same not to have be put in issue this be the law  of the exchequer to resort unto the record of the exchequer to see there what  prisage be due unto the king in and e the manner of take prisage S one before  and the other behind the mast if this be matter in law then the trial of this  by a jury be error that this be matter in law e fol Fitzherbert tittle error  plea and brook title custom plea a particular custom be the law of that  particular place but not of the whole realm but a general customer or usage of  England be the law of England and this be not to be try and determine by a  jury h brook case fol plea brook title custom plea custom per totan England be  the commonlaw of the land and such a custom be not triable by a jury so here  this custom or usage for prisage be the commonlaw of the land and the same  ought not to have be so try by a jury and this be thus try the same be error  and for this error the judgement be to be reverse coke t e king have this his  prisage by prescription and by e it be a thing against common right dodderidge  the matter here considerable be whether this matter be here issuable or not  earl or not earl be triable by the record but if he will put this upon a issue  and so will try this this then be good and sufficient be thus try and so it be  of land in ancient demesne this be to be try by the record of Domesday book  yet if he will put this in issue and try it the trial be good the matter here  be whether this prisage be such a prerogative which belong to the king the  which a jury be not Bulstrode er p to try if this bebelong ing to the king as  in the right of his crown or if be have gain this from the subject by  prescription this be the sole point here considerable in this case if this be  a prerogative royal in the king as in the right of his crown the judge then be  to take notice of this and not to suffer this to be try by juror coke it be  very evident and clear that the king have this but by prescription it appear  by e that the bishop and the king have this by prescription purveyance be for  the king household and if the king will grant this over to another by charter  this be not good here they prescribe to be discharge of prisage it be a very  bare matter to prescribe against insignia Coronoe I never read of a discharge  make unto any one of the payment of urveyance purveyance be due unto the king  by the commonlaw of the land but prisage be not so but by prescription it be a  plain and a clear case that one shall not be suffer to traverse Bulstrode or  otherwise to try whether purveyance do belong to the king or not but prisage  be by custom and no stranger be to pay prisage and we ought to maintain the  king charter in this kind as well by the rule of state as by the rule of law  englishmen pay prisage and stranger pay butlerage merchant pay butlerage S two  shilling for every tun this two shillinas grant unto merchantsstrangers by  charter so that they be not to pay this ChaAta Nfercatoria a good record worth  know Yelverton solicitorgeneral there be no judge but well know what prisage  be S one tun to be take before the mast of the ship and another tun behind the  mast coke chief justice this be a true difference a stranger shall pay  butlerage but not prisage and a Englishman shall pay prisage but not  butlerage  and a citizen of London shall pay neither of they this matter here  be well traversable for it be against the law of the land for a stranger be  not to pay prisage since the charter of king Edward the first make e grant to  strangersmerchants that they shall not pay prisage Yelverton solicitor by the  commonlaw they be to pay it dodderidge by the commonlaw the king be to have  prisage of all general but the charter of e do discharge merchantsstrangers  from the payment of it in lieu of which they grant two shilling a tun for  butlerage I coke we do not know how we can reverse this judgement thus give  and so without say any more this case be further adjourn but not move again  afterward the party perceive the opinion of the court end the same between  themselves the judgement be neither reverse nor yet affirm