coke b GATEWARDS case hill James in common banc see commissioner of sewer v  glass lr Ch Reg v Rollett lr qb Austin v amhurst Ch d Lord river v Adam ex d  goodman v mayor of Saltash App Cas in re Christchurch enclosure Act Ch d Ch d  Tilbury v Silva Ch d Brocklebank v Thompson Ch there can be a custom for  inhabitant as such to have profit apprender in the soil of another but there  may be a custom for every inhabitant to have a discharge in his own land or a  easement in the land of another copyholder in fee or for life may have by  custom of the manor common in the demesne of the lord of the manor and they  ought to allege the custom to be that every copyholder of every customary  message c and not that every inhabitant in any ancient customary message c SC  cro throw Acc hob Bulst see Wilson in trespass by Robert smith against Stephen  gateward gentle quare enclosed space to break in pieces at Horsington in come  Lincoln peremptory or urgent call Horsington Holmes cum quibusd averiis  videlicet horse cow animal for sacrifice to feed down to be au a Elizabeth  with continuance the defendant quoad pig plead not guilty and as the residue  of the trespass he plead quod villan de Stixwold be ancient villan contigue  contiguous predict clause peremptory or urgent call Horsington Holmes whoever  it be infra the same viltam to have a toto tempore pron  interrog  contrar  memory hom non step forth ankle to have custom videlicet quod inhabitant infra  the same villan de Stixwold predict infra some antiquity messuagium ibidem  ration commorantice resident sum in eaden to have use to be to become used to  have come pasture in prd loco in quo c pro omnibus in every way an ox horse  other young fig animal communicate super hujusmodi ancient messuagia svan  infraprd villan de Slixwold prd modus form following coke a videlicet  whithersoever you please year ad in all respects time striving nor pro animal  for sacrifice nest levant lying c whithersoever you please and super at first  they Augusti from that source risk holiday annunciationis beat Mari maiden  tunc neighbor sequen and plead that he prd tempore quo to be thus far be  commora inhabitant in the say town of Stixwold in a ancient house in S prd and  so justify upon which the plaintiff do demurrer in law and this plea begin  Trin James and be oftentimes argue at the bar and now this term be open argue  at the bench by all the justice and it be unanimous resolve by all the justice  of the common plea that the a Cr James a custom be against law for several  reason a so a custom for poor and indigent householder live in a to cut and  carry away rot bough and branch in a chase in a be bad the description of poor  householder be too vague and uncertain Selby v Robinson TR a there be but Cr  Elizabeth four manner of commons know common appendant appurtenant in gross  and by reason of vicinage and this common ration commorant resident be none of  they and b   light b b argumentum a division be fortissimum in jure what  estate shall he have who be c Cr Elizabeth and Leon godb c inhabitant in the  common when it appear he have no estate or interest in the house but a mere  habitation and dwell in respect of which he ought to have his common for none  can have interest in common in respect of a house in which he have no interest  such common will be transitory and altogether uncertain for it will follow the  d Cr James d person coke report b er p and for no certain time or estate but  during his inhabitancy and such manner of interest the law will not suffer for  custom ought to extend to that which have certainty and continuance it will be  against the nature and quality of a e Cr James e common for every common may  be suspend or extinguish but such a common will be so incident to the person  that no person certain can extinguish it but as soon as he who f Cr James f  release c remove the new inhabitant shall have it if the law shall allow such  common the law will give a action or remedy for it but he who claim it as  inhabitant can have no action for it in these word inhabitant and resident be  g Cr James b c g include tenant in feesimple tenant for life for year tenant  by elegit c tenant at will c and he who have no interest but only his  habitation and dwell and by the rule of all our book without question h roll  Rep Doct pl dyer pl e b hob black Rep h tenant in feesimple ought to prescribe  in his own name tenant for life year by elegits c and at will c in the name of  he who have the fee and as he who have no interest can have no common so none  that have no interest if it be but at will ought to have common but by good  plead he may enjoy it No I vent I improvement can be make in any waste if such  common custom shall be allow for the tenant for life for coke b year at will  tenant by elegit statutestaple and statutemerchant of house of the lord  himself will have common in the waste of the lord himself if such prescription  shall be allow which will be inconvenient but two difference be take and agree  by the whole court between a charge in the soil of another and a discharge in  his own soil between a a hob Cr James Cr car Cr Elizabeth Bulst a interest or  profit to be take or have in another soil and a easement in another soil and  therefore a custom that every inhabitant of a town have pay a modus kill to  the parson in discharge of their tithe be good for they claim not a charge or  profit appender in the soil of another but a discharge in their own land so of  a custom that every inhabitant of such p town shall have a way over such land  either to the church or market c that be good for it be but b   light b Cr  James Cr Elizabeth Cr car dyer pl e b hob Jones b a easement and no profit b  so a custom for all inhabitant of a parish to play at all kind of lawful sport  and pastime in the close of a at all seasonable time of the year at their free  will and pleasure be good fitch v rawling h b bell v Wardell Willess and the  case cite b and a way or passage may well follow the person and no such  inconvenience as in the case at bar it be resolve that copyholder in fee or  for life may by custom of the manor have common in the demesne of the lord of  the manor but then they ought to allege the c Doct pl hob   b a c custom of  the manor to be quod who to hold customarius pron  interrog  old mesuagii  customar c and not quod who inhabitant infra some antiquity messuagium  customar c for a copyholder have a customary interest in the house c and  therefore he may have a customary common in the lord waste and in such case he  can prescribe in the name of the lord for the lord can claim common in his own  soil and therefore of necessity such custom ought to be allege c Vid sergeant  williams note potter v north sand c vide e see the four part of my report  Foistons case another d   a   a   light b I l raym Willess d difference be  take and agree between a prescription which always be allege in the person and  a custom which always ought to be allege in the land for every prescription  ought to have by common intendment a lawful beginning but otherwise it be of a  custom for that ought to be reasonable ex certainly causan rational as  Littleton say usual but need not be intend to have a lawful beginning as  custom to have coke report a er p land devisable or of the nature of gavelkind  or boroughEnglish c these and the like custom be reasonable but by common  intendment they can have a lawful beginning by no grant or act or agreement  but only by parliament see also for this matter Foistons case also it be agree  that the custom of a manor that dom pro tempore shall grant land customary be  good and tenant at will may do it and so h b by the custom of the court of  common plea coke a the chief e   b dyer pl h b roll   a e justice grant  diverse office for life and these custom be good but in such case he who grant  they have a interest in the manor or office and their grant be make good by  the custom and r action sur Le case a beadle of the hundred shall have three  flagon of beer of every brewer who sell within the hundred cause qud above but  a custom that a inhabitant or resident shall grant or take any profit be mere  void d in Grimstead v Marlowe TR the authority of Gatewards case be recognize  and it be adjudge that a custom to take a profit in another solon be bad and  that such a right can only be claim by prescription d it be resolve that if  the custom have be allege that who paterfamilias infra some antiquity message  c it will be also insufficient for the cause and reason aforesaid and if he  have any interest he may be relieve as aforesaid vide e a e b e b e b h b h  report by Spilman that such custom be not warrant by law and so be it adjudge  in this court Trin Elizabeth rot see the book of entry trespass common vide h  b e dyer Isams case note reader the law in this general case well resolve and  no book in the law be adjudge against it and hereby it appear how pleader may  safe plead in these and the like case and observe well that the custom in the  case at bar be insufficient and repugnant in itself for it be allege that the  custom of the town of S be that every inhabitant thereof have use c to have  common within a place in the town of h which be another town vide Elizabeth  dyer pl what custom be good or not see Rep Q a c note to former edition Vid  vin ab custom Bac ab custom