coke a swain case mich James in the common plea a lease of a manor in which  there be a custom that every copyhold tenant for life have use to take all  tree grow upon his copyhold land to be employ for fuel coke report b er p in  his copyhold house and for bind and fence c upon the customary land and  tenement be make for twentyone year with a exception of the tree wood  underwood c at a court hold by the lessee a house with certain land upon which  certain oak and ash tree be grow be grant by the steward by copy of court roll  to one a for life accord to the custom of the manor a lop the say tree upon  his copyhold and employ they for bind and fence in and upon his copyhold land  c hold that he may lawful do so grant by copy shall not be avoid for infancy  coverture nor in respect of the exility baseness or uncertainty of the  interest or estate of the lord if the lord take a wife and grant the land by  copy and die his wife be endow of the say land shall not avoid the grant the  copyholder who come in by voluntary grant shall not be subject to the charge c  of the lord before the grant if there be a grant of a rend out of land upon  condition a subsequent feoff of the same land do not destroy the condition  note the difference between prescription and custom S C moor Brownl Brownl  roll Rep roll Rep   b Watk Copy Scriv Copy Rep Richard swain Esq bring a  action of trespass against Walter Becket quare enclosed space to break in  pieces at Hannington in the county of wilts and lop c ten oak and fifteen ash  c and upon not guilty the case as it be special find be such queen Elizabeth  be seize of the manor of Hannington in the county of wilts in fee in the right  of her duchy of Lancaster and that the say oak and ash so lop be grow upon a  yard and half of land parcel of the same manor and copyhold land c and  demiseable for one two or three life and afterward the queen by indenture  under the seal of the duchy of Lancaster year royal power Himself demise the  same manor to John wolly Esq To take out omnibus kind of water fowl subboscis  tree et male c to have and to hold to he except before except for twentyone  year who Elizabeth assign all his interest to John plumer and other and  afterward the queen die and afterward the king that now be by his letter  patent under the duchy seal grant to Alexander Lord Five Richard swain and  Peter whetcombe return predict ac permission such ut prefertur except to they  and their heir to who the lessee attorned and afterward the Lord Five and  whetcombe by their deed release to Richard swain and his heir and at a court  hold by the lessee Oct James king their steward grant by copy of courtroll to  the say Walter Becket now defendant c a house and the say yard and a half of  land upon which the say oak and ash be grow for term of life secundum  experience manor and that within the say manor there have be such a custom  that every copyholdtenant for life have use to take all tree grow upon his  copyhold land to be employ for fuel in his copyhold house and for bind and  fence and other necessary reparation to be in and coke b upon the customary  land and tenement and that the defendant do lop the say tree upon his copyhold  and employ they for bind and fence in and upon his copyhold land and tenement  c and the doubt be that forasmuch as the say lessee hold the court by virtue  of the say lease of the manor out of which lease the say tree be except if the  defendant to who they by their steward grant the say tenement by copy may lop  the say tree which by the say exception be divide from the say lease and in  this case diverse point be resolve by coke CJ Walmsley Warburton Daniel and  foster as after appear but first it be object quod a   b   a   b b   light b a  no one to be able plus law in other transfer how ipse to have and the lord pro  tempore who hold the court and make the grant to the defendant have nothing in  the tree for they be except out of their lease ergo the copyholder who claim  by grant of the lessee can not meddle with the tree but it be answer and  resolve per totan curian that not coke report a er p withstand the severance  by the b more Brownl   b ante   a b exception and notwithstanding the  defendant come in by a voluntary grant of the lord for life and not by  surrender yet such grantee by copy shall have estovers for the estate of the  copyholder who come in by voluntary grant be not derive out of the estate or  interest of the lord of the manor for the lord of the manor be but as a c   b  b   light b b roll cro Elizabeth Bridgm more c instrument to make the grant  but the custom of the manor after the grant make establish and make it firm to  the grantee so that although the grant be new yet the title of the copyholder  be ancient and so ancient that by force of custom it exceed the memory of man  and therefore neither for infancy nonsane memory coverture nor other such  disability neither in respect of exility baseness or a roll   b b   light b Cr  James a uncertainty of the interest or estate of the lord as at will or up on  condition c the grant by copy shall be avoid because they claim in by force of  a good and ancient custom which have no disability of person or defect of a  perfect interest and pasch Elizabeth in banc king it be adjudge that if the  lord take a wife and afterward grant the land by copy accord to the custom and  die his wife be b more Brownl Bridgm Leon Siderf atk b endow of the say land  among other shall not avoid the estate by copy for although her title of dower  be before the grant yet the title of the copyholder which be the custom be  ancient than the title of dower and so the copyholder who come in by voluntary  grant shall not be subject to the charge or encumbrance of the lord before the  grant and all that in this case be affirm for good law per totan curian it be  resolve that when the copyholder Doct pl for life accord to the custom have  use to have common in the c Brownl c waste of the lord of the manor or  estovers in his wood or any other profit apprender in any part of the manor  and afterward the lord alien the waste or wood to another in fee coke a and  afterward grant certain copyhold house and land for life such grantee shall  have common of pasture or common of estovers c notwithstanding the severance  for the title of the copyholder be paramount the severance and the custom  unite the common or estovers which be but accessary or incident as long as the  house and land be principal be maintain by the custom which customary  appurtenance be not appertain to the estate of the lord for he be the owner of  the freehold and inheritance of all the manor but they be appertain to the  customary estate of the copyholder after the grant make unto he which profit  apprender be due by custom to the copyhold tenement notwithstanding the feoff  or fine c of the waste or wood make by the lord remain and be preserve by the  custom which be as have be say the title of the copyholder and be paramount to  the severance but if the copyholder have derive his interest from the estate  of the lord then clear by the feoff or fine c of the lord all those who after  claim by he shall be bar of any profit apprender in the same waste or wood  vide d   b Cr Elizabeth Leon d Murrels case in the four part of my report that  after the custom have fix a customary interest no severance of the inheritance  shall overthrow the copyhold and vide e   a more   blow e brown case ibidem  and if a man grant a rend to another out of his land on condition and  afterward make a feoff of the land yet the condition to determine the rend  remain and be not extinct by the feoff for it be collateral to the title of  the land and notam the difference between f   b   light b   a f prescription  which be make in the person of any as he and all his ancestor c or all those  who estate he have c and custom which lie upon the land as infra manor ankle  to have custom c and this custom bind the coke report b er p land as gavelkind  borough English and the like a Doct pl a but after such severance of the waste  or wood c the copyholder when he entitle himself to common or estovers c in  plead shall not plead general quod infra manor predict ankle to have c custom  c for after the severance the waste or wood c be not within the manor but  absolute divide from it but b Doct pl b shall plead that until such a time  sure before the severance ankle to have et toto tempore c custom and then show  the severance as he ought in the say case of Murrell where the lord of the  manor alien the freehold and inheritance of the copyhold vide h h h e e b e  and coke CJ say that the say case at bar be a general case for in all c   b c  lease of manor make by queen Elizabeth or the king that now be such exception  of tree and timber c S and judgement be give for the d more d defendant