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Front Page Titles (by Subject) Sec. XXXIII. - Selected Writings of Sir Edward Coke, vol. II
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Sec. XXXIII. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]Edition used:The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.
Part of: Selected Writings of Sir Edward Coke, 3 vols.About Liberty Fund:Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright information:The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. Fair use statement:This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Sec. XXXIII.| Customes are defined to be a Law, or Right not written, which being established by long use, and the consent of our Ancestors, hath been, and is daily practised. 2. To prescribe generally, not tying his Prescription to place, or person, as where a Chiefe Justice prescribeth, that it hath been | used, that every Chiefe Justice may grant Offices; or where a Sergeant prescribeth, Quod talis habetur consuetudo,14 that Sergeants ought to be impleaded by originall Writ, and not by Bill. 3. To Prescribe in a place certaine. 4. To Prescribe in the place of another. The first sort of these Prescriptions, a Copyholder cannot use, in regard of the imbecillity of his estate; for no man can Prescribe in that manner, but onely Tenants in Fee simple, at the Common Law. The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome, but in alledging of a particular Custome, a Copyholder is driven to one of the last, and as occasion serveth, he useth sometimes the one, sometimes the other. If he be to claime Common, or other profit in the soyle of the Lord, then he cannot Prescribe in the name of the Lord, for the Lord cannot Prescribe to have Common or other profit in his owne soyle; but then the Copyholder must of necessitie Prescribe in a place certaine, and alleadge, that within such a Manor, there is such a Custome, that all the Tenants within that Manor, have used to have Common in such a place, parcell of | the Manor: but if he be to claime common, or other profit in the soyle of a stranger, then he ought to prescribe in the name of his Lord, saying, that the Lord of the Manor, and all his Ancestors, and all those whose estate he hath, were wont to have a Common in such a place for himselfe, and his Tenants at will, &c. C. Little Treatise on Baile and MainprizeThe Little Treatise, first published in 1635 shortly after Coke’s death, augments Coke’s discussions of criminal procedure in the Second and Third Parts of the Institutes. Bail and mainprize were the two methods by which a sheriff or other officer of a court could be required to set free the person detained. Bail was used primarily for a person arrested or imprisoned on suspicion of a crime, but mainprize could be used in other situations, and it required the delivery of the person detained into the custody of someone who promised to deliver the detainee for a later hearing.—Ed. [14. ][Ed.: that there is such a custom (as follows).] |

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