The Customs of Old England

by F. J. Snell

As there was considerable variation between the customs of different towns and different counties, it became the duty of the Justices on Eyre to investigate what was the custom, with regard to the subject of the plea, in the particular locality, and they gave their decisions accordingly.

Some of these cases are sufficiently amusing, as may be gathered from the following record of a case heard in the Salop Inter of 1292:

"One Adam brought a writ of Entry against B.—B.: 'Sir, we vouch to warranty, &c., W. de C., who is under age, to be summoned, &c.'—C. came and prayed his age.—Spigornel (for Adam): 'Sir, according to the custom of the town, he is of age when he knows how to count up to twelve pence, and he shall answer in a writ of Right at that age; and inasmuch as he would answer in a writ of Right at that age, he shall warrant at that age, or shall counterplead, &c. But now he is nineteen years old, which is nearly of full age. Judgment if he shall not warrant or counterplead.' Judgment that he should."

From the same Year-Book we obtain an insight into the working of what may be termed communal law in the weighty matter of succession. One Isabel brought the Novel Disseisin against a chaplain named Martin de Hereford and others for a tenement in Shrewsbury. The defence was that Martin had entered by the devise of one William Silke, and that the custom of the town permitted a man on his death-bed to devise tenements of his own purchase. Isabel's counsel, on the other hand, contended that William's father held the tenements by the law of England, and that William merely purchased the freehold, arguing also that the devise was made in contravention of the statute (7 Ed. I., st. 27), since it was made in mortmain for the beneficiaries to chant for him and his heirs for ever. The Judge ruled that alienation contrary to the statute was no justification for the heir to enter; and he drew attention to the inconsistency of counsel in pleading that Silke could not devise his inheritance, and that he could devise if there were no infraction of the statute. Counsel thereupon elected to abide by his first contention, and the question of fact was referred to the Assise (or Jury) which found that part of the tenements were in William's seisin and that William had purchased his father's estate therein.

We now come to the concluding passages of this highly interesting suit:

"Berewyke [the Judge]: 'For that he could not purchase his own heritage so that it could be styled his own purchase; and he devised the tenements; and the custom of the town does not permit a man to devise his heritage; Therefore this Court adjudges that Sybil (sic) do recover her seisin of the tenements which were not devisable. Now what say you as to the remainder?'

"The Assise said that the remainder of the tenements were of his own purchase from several persons in the town, and that in his last illness he devised them to Martin for the term of his life, and that the testament was proved at the Guildhall according to the custom of the town; and that the executors were commanded to deliver seisin to Martin, and that according to the custom he had the seisin, &c.

"Berewyke: 'Since it is found that he entered on the tenements according to the custom, &c.—although you were seised for four weeks, yet that ought not to give you a title—this Court adjudges that you do take nothing by the writ, &c. After Martin's death be well advised.'"

Communal law, however, was not allowed to override the law of England.[12] This principle was asserted in 1293, when Thomas le Chamberleyn brought a writ before the Common Bench against a certain W., who, he complained, had taken his horse in the highway in the town of Bernewell. The writ ran—"took in the highway and still keeps impounded." There was the usual wrangle between counsel, and an attempt was made to oust or invalidate the writ by asserting that six years and a half before it (the writ) was purchased the animal had been surrendered. After this preliminary fencing counsel for the defence produced his real case, which was that by the King's charter the burgesses of Cambridge had a franchise to this extent, that when clerks or other persons were in debt they might seize their horses or other property within the liberty; and as Thomas was bound in so many shillings, his horse was seized according to the custom of the town, and in no other way. The trespass being admitted, the Judge (Gislingham) proceeded to give judgment on the plea of justification. He said:

"For that it is against the common law and against the statutes to make such a taking in the highway unless he be the King's bailiff, notwithstanding any franchise which the King may have granted, therefore the Court adjudges that Thomas do recover his damages, and that W. be in mercy for his tortious taking."