were laden with Wines and returning to the coasts of England the hand of Heaven had not as yet disfranchised him from being a Citizen and member of the City of London And as to two of the Ships the said George Hanger had his abode here until such time as they were in the Port at London safe from being swallowed by the surging waves of the Sea secure from the surprizing of the desparate Pyrates the which being so that three of the four times as to all the four Ships were past during the time that he was a member of the City and also part of the fourth time as to two of the Ships it is reasonable to think that these Ships shall participate of Immunity and Priviledge it be discharged of the payment of prisage which is granted by the Charter made bâ— King Edward the third notwithstanding that the last time was not comâ— before his death and the more especially also because the law hath such regard unto the commencement and beginning of a thing and will have respect unto it notwithstanding that there belong distance of time between the in choation and consummation of it Anâ— therefore where a servant having an intention to kill his Master doth depart ouâ— of his service and long time after his departure out of his Masters service doth kill him that is petty treason in the servant in regard of the retrospect which the Law hath to the first intention of the servant when he was in his Masters service and yet if you respect the time of the murder committed without regard had unto the first time it cannot be petty treason because the servant was out of his service at that time Seventhly it is to be observed that this Charter to be discharged of the payment of prisage granted by King Edward the third was granted unto the Mayor and Commonalty of London which is a body that alwayes continueth and never dieth and so howsoever that George Hanger unto whom as unto a member of that body the priviledge of that Charter is distributed be dead and cut off from that body yet in so much that the body politique of the Mayor and Commonalty unto whom the Charter was made liveth the Priviledge and Immunity of George Hanger to have his Wines discharged of the payment of prisage will live and continue in that body notwithstanding that George Hanger be dead Eightly this Charter being a Charter made for the advancement and good of Merchandize and trading which are as it were the Blood which giveth nourishment unto the politique body of the Kingdome is to have a favourable and benigne construction whereby trading may be the better supported and maintained and the life of the State longer continued and therefore where King Edward the third in the third year of his Reign granted unto the Merchants of Almagne France and Spain that they should come safely and securely with their Merchandize into England and should be free from Pontage Muragâ— and such other Tolles this Grant was allowed to be good and received an exposition according unto the Law oâ— Merchants which is the Law of Nations and howsoever it would not bâ— good by the strict rules of the Common Law because the Merchant-strangeâ— were not a Corporation able to take yet it was admitted sufficient by that Aâ—gem marcatoriam according to whicâ— in some cases of Merchants the Judgâ— of the Common Law ought to give the Judgement wherefore in the case at the Bar this Charter concerning the City of London which is the University of Merchants and this case concerning George Hanger which was a Scholar trained â—â— this in School and had been matriculated in this place the Judge are to fram and give their Judgement so as the Unversity and Scholars of it may receive the better encouragement to proceed and may not be disheartened to diveâ— their courses intended from Merchandiâ—ing and Trading by reason of the striâ— construction of Charters which givâ— unto them Immunities and Privledges Ninthly and lastly this very case received formerly the resolution of three Barons in the Exchequer upon an Information exhibited there by Sir Thomas Waller that Frances Hanger should be discharged of Prisage for the Wines in all the four Ships whereupon Sir Thomas discontinued his Information and exhibited it denove in the Kings Bench whereby he would take the opinion of this Court likewise and there having been former opinion conceived for the discharge of them it is more agreeable with reason to have this opinion confirmed than opposed But Sir Thomas Fleming Sir Iohn Crook and Sir Robert Haughton seemed upon the reasons hereafter ensuing that Judgement ought to be given for Sir Thomas Waller and that prisage ought to be paid by Frances Hanger both for the Wines wich were in the Ships that were arrived before the death of George Hanger as likewise for the Wines which were in the two Ships which were upon the Sea at the time of the death of George Hanger howsoever by way of advice they wished that for the Wines in the Ships which were come home during his life the payment of prisage ought not to be pressed by Sir Thomas Waller First in regard the Charter extendeth only to discharge the Wines of such a person as is a Citizen of London of the payment of prisage and George Hanger being dead and so a Citizen of the heavedly Ierusalem may not be longer said to be a Citizen of London and so not within the compass of the Immunity granred by the Charter Secondly this priviledge to be discharged of the payment of prisage is in respect of the person who is the owner of the Wines and not in respect of the Wines themselves and then there being a remotion of the person unto whom the exemption is tyed there is a remotion of the exemption it self and therefore notwithstanding a Tenant in ancient Demesne be by the Common Lawes of this Realm to be discharged of the payment of Toll in all Faires and Markets yet if the Tenant in ancient Demesne make his Executors and die the Executors for the Goods of the Testator are to pay a Toll in so much that it was only a personal priviledge which dieth together with the person Thirdly this Charter bereaving the King of the payment of prisage which is a Flower of his Crown ought to have a strict construction so as none may take benefit of it but only such as are within the precise words of the Charter wherefore George Hanger being dead and so no more a Citizen of London howsoever the Wines in the Ship may be said to be the Wines of George Hanger to a special intent that is to say for the payment of his Debts and the performance of his Legacies according to his true intendment expressed in his Will yet may they not be said to be the Goods of George Hanger to every intent in so much that Frances Hanger the Executrix hath
Commonalty for payment of the said sum at a certain day and thereupon is enlarged The four hundred Marks are not paid at the day whereupon the Mayor and Commonalty affirm a Plaint against him in London for the said Debt The Defendant obtaineth a Habeas Corpus to remove the body and the cause into the Kings Bench upon a supposition that he was to have the Priviledge by reason of a Priority of Suit in the Kings Bench and upon returne of the Habeas Corpus all this matter appeared unto the Court and it was moved by Sir Henry Mountague now Lord Chief Justice of the Kings Bench then one of the Serjeants of the King and Recorder of London that a Procedendo might be granted whereby the Major and Commonalty might proceed against him in the Court at London It being a customary Suit meerly grounded upon the custome of London But that was denied by Sir Edward Cook Chief Justice and the whole Court because by the Law Chamberlain having cause of Priviledge by reason of the Priority of Suit against him in the Kings Bench might not be re-manded but he was to answer in that Court Whereupon the Major and Commonalty did declare against him upon the said Obligation in the Kings Bench. Secondly it was moved that the action upon this obligation might be laid in some indifferent County and not in London forasmuch as the Trial there must be had by those that were Parties unto the Action it being brought by the Mayor and Commonalty But Sir Edward Cook and the Court would not upon this surmise take away the benefit which the Law giveth to every Plaintiff upon a transitory action wich is to lay it in whatsoever County he will And if there be any such cause as is surmised then after Plea pleaded he may make an allegation That the City of London is a County in it self and that all the Citizens there are Parties to the Action which is brought whereby there may not be an indifferent Trial. And upon this surmise the Court shall order the Trial to be in a Forreign County The which was done accordingly and so the matter proceeded The Case of the Merchant-Adventurers KIng Edward the third in the year of his reign by Letters Patents doth incorporate certain persons by the name of the Merchants-Adventurers of England and doth give power unto them to transport white Clothes into divers parts beyond the Seas restrayning them from carrying over Woolls The Merchants-Adventurers do trade beyond the Seas and continue the transposing of Clothes white until the 29. of August in the tenth year of his Majesties Reign that now is At which time the King by his Letters Pattents doth encorporate the Earl of Sussex late Lord Treasurer of England Sir Thomas Vavasour Sir Stephen Soam William Cockayn and others by the name of The Merchants Adventerers of the new trade of London with full power authority to transport dyed and dressed Cloths into divers parts beyond the Seas with a restraint prohibiting all the Old Merchants-Adventurers which did not joyn themselves unto this new Company to tranport any under the forfeiture of them and also inhibiting the New Merchants from transporting any Clothes but such as are died and dressed And after three years passed they having power during that time to transport 36000 white Clothes And there being a refusal of the Old Merchants Adventurers to surrender up their Patent The King bringeth a Quo Warranto against divers of the Merchants of the old Company by particular names to know by what Warrant they do without Licence of the King transport Clothes white undied and undressed beyond the Seas The Merchants upon the return of the Quo Warranto do make their appearance And an Information being exhibited gainst them by Sir Fr. Bacon Knight now Lord Chancellour of England and then Attorney General unto his Majesty cometh into the Kings Bench and moveth the Court that the old Merchants Adventurers might have a short day the next ensuing Term to answer unto the Information exhibited against them Insomuch that the new Company of Merchants Adventurers standing at a gaze as being uncertain of what validity the old Patent would be did slack to transplant the Diers and other Tradesmen out of the Low-Countries into England being necessary Instruments for the puting in Execution of this design because there were not here in England those that were able to Die and Dress in that manner that the Low-Country men did And so there was in the interim a stop of the current of Merchandizing with our Cloth the which being the principal Commodity that we had here in England the Fleece that causeth it may well and aptly have the term of The Golden Fleece and there being a stop made of the traffiquing and trading with these clothes it is as dangerous unto the Politique Body of the Commonwealth as the stop of a Vein could be to the natural Body for as by the stop of a Vein the Blood is debarred of his free passage and so of necessity there must be a Consumption by the continuance of it follow unto the body natural So traffique being the Blood which runneth in the Veins of the Commonwealth it cannot be but that the hinderance of it by any long continuance must breed a Consumption unto the State of the Commonwealth Wherefore to open this Vein which was as yet somewhat stopped and to give a more free passage unto the Blood he was a Suitor unto the Court on the behalf of the Company of the New Merchant-Adventurers that the Court would give expedition in this Case for they conceived that if this new design might take its full effect as it was intended it could not be but of necessity there must a great benefit redound to the Commonwealth For first Whereas our State groweth sick by reason of the many idle Persons which have not means to be set on work this Dying and Dressing of Cloths within our Kingdome would give sufficient imployment unto them all whereby there should be a cure to the lazy Leprosie which now overspreadeth our Commonwealth Secondly Whereas now we send out clothes White and the Low-Country-men receive them of us and Dye them and Dress them and afterwards transport them unto forreign parts making a wonderful benefit to themselves both in point of profit and likewise in respect of maintaining their Navy whereas if the Clothes were Died and Dressed by our selves we might reap that matter of gain and also be Masters of the Sea by strengthening our selves in our Shipping Thirdly Whereas there happeneth often a confiscation of all our Clothes and much disgrace and discredit lighteth upon our Nation and our Clothes by the abuse of the Low-Country-men in stretching them a greater length than they will well bear when they Dye and Dress them now it should be prevented when they should never have the fingering of them to put that abuse in practice Wherefore this Patent made by
the Parish of Grace-Church street London for which house a rent of five pound yearly hath been reserved time out of mind in the third year of the King that now is by Indenture doth make a Lease for five years unto one Withers of part of the House and of the Shop rendring the Rent of five pound by the year at the four usual Feasts that is to say at the Feast of the Annuciation c. by even and equal portions And in the same Indenture it is further covenanted and agreed that Withers the Leassee shall pay unto Burrel the Leassor a hundred fifty pound in name of a Fine and Income the which said hundred and fifty pound is to be paid in manner and form following that is to say thirty pound yearly and every year during the said term at the four usual Feasts by even and equal portions the term of five years expired the said Burrel in the tenth year of the said King by Indenture maketh a new Lease for the term of seven years of the said part of the house and the Ware-house unto one Goff rendring the rent of five pound by the year at the Feast of S. Michael the Archangel and the Annunciation of the Blessed Virgin Mary by even and equal portions And in the same Indenture it is further covenanted and agreed that Goff shall pay unto the said Burrell 175. l. in the name of a Fine and Income in manner and form following that is to say twenty five pound yearly during the said teâ—m at the said two usual Feasts by even and equal portions Dunn Parson of Grace-Church exhibiteth his Petition unto the then Lord Mayor of London against the said Burrel and Goff wherein he supposeth that Tythes are paid unto him only according to the rate of five pound by the year where in truth he ought to have an allowance according unto the rate of thirty pound by the year The Lord Mayor by the advice of his Councel doth call the said Burrell and Goff before him and upon full hearing of the said cause doth order the pâ—yment unto Dunn according unto the rates of five pound by the year and not according to the rate of thirty pound by the year whereupon the said Dunn doth exhibit his Bill of Appeal unto the Lord Chancellour of England in the Chancery wherein he doth make a recital of the Decree made and established by Act of Parliament in 37. H. cap. 12. and also of the case special as it standeth charging the said Goff and Burrell with a practice of fraud and covin in the reservation of this twenty five pound by year by way of Fine and Income and defrauding him of that which belonged unto him The said Goff and Burrell do make their answer and shew that the rent of five pound by the year is the ancient rent reserved and that they are ready and have often tendred the payment of their Tythes according to that proportion but it hath been denied to be accepted and they do take a traverse unto the fraud and covin wherewith they stand charged And upon this answer Dunn the Parson demurreth in Law And this case was first argued in the Chancery by Sir Francis Moor Serjeant and Thomas Crew on the behalf of Dunn and by Sir Anthony Benn late Recorder of London and Iohn Walter on the part of the Defendants The Lord Chancellour having called Sir Henry Mountague Cheif Justice of the Kings Bench Sir Henry Hobart Chief Justice of the Common Pleas Sir Iohn Doddridg one of the Justices of the Kings Bench and Sir Richard Hutton one of the Justices of the Common Pleas to be his Assistants and after two Arguments heard on each side in the Chancery upon Suit made to the King by Sir Francis Bacon then Lord Chancellour of England a special Commission was granted unto Thomas Lord Archbishop of Canterbury Sir Francis Bacon Lord Chancellour of England Thomas Earl of Suffolk late Lord Preasurer of England Edward Earl of Warwick Keeper of the Privy Seal William Earl of Pembrook Lord Chamberlain of the Kings houshold Iohn Bishop of London Bishop of Eli Sir Henry Mountague Sir Iulius Caesar Master of the Rolls Sir Iohn Doddridg and Sir Richard Hutton wherein there was a special recital of the question and cause depending between Dunn on the one part and Burrell and Goff on the other part and power given unto them for the hearing and determining of this cause and likewise for the mediating between the Citizens of London and the Parsons of the several Parishes and Churches in London and making an arbitrary end betwixt them whereby a competent provision may be made for the Ministers of the Churches of London and too heavy a burthen may not beimposed upon the Citizens of London with a command further that they shall certifie the King what was done in the premises And this Commission was sat upon at York-house where the case was argued at several times by Sir Randal Crew and Sir Henry Finch Serjeants of the King on the part and behalf of the Ministers of London and by Sir Henry Yelverton Attorney of the King and Sir Thomas Coventry Solicitor of the King on the behalf of the Citizens of London and because the main Question remained as yet undetermined and no resolution is given either in point of Law nor Arbitrary end by way of mediation I shall only open the parts of the case and make a summary report of them without further debate of them The Case divideth it self into six parts that is to say First whether any thing can be demanded by the person for houses in London according to the course of the Common Law Secondly whether custome can establish a right of payment of any thing unto the Parson for houses and of what nature the payment established shall be Thirdly what was anciently payable by the Citizens of London for their houses unto the Ministers of London and how grew the payment Fourthly whether this twenty five pounds reserved upon a covenant by way of fine and income be a rent within the words of the Decree made 37. H. 8. cap. 12 Fifthly whether this reservation of twenty five pounds by the year by way of fine and income shall be adjudged to be a rent within the intent and meaning of the Statute an Decree or no Sixthly who shalâ— be Judge of the Tithes for houses in London and the remedy for the Parson in case that payment be not made unto him according to the Decree As to the first part which is whether by the Common Law any thing can be demanded for the houses in London It is to be agreed and clear that nothing can be demanded For that which the Parson ought to demand of houses is Tythes and it is improper and cannot be that Tythes can be paid of houses First in regard that houses do not increase and renew but rather decrease for want of reparations and
It was agreed and resolved That it may and doth well enough hold For howsoever that none was charge able at the Common Law by the name of an Administrator inasmuch as by the Statute of 31. Ed. 3. cap. No accusation lay against an Administrator by that name And that A custome may not commence since the making of that Statute yet inasmuch as he was chargable at the Common Law as an Executor for his Administration so that the name of the charge is only changed and yet in substance is all one For every Executor is an Administrator and the pleading is upon an action brought against an Executor that he never was Executor nor ever administred as an Executor And an Administrator hath the quality and office of an Executor Therefore the custom of Forreign Attachments will hold against an Administrator as well as against an Executor As to the third Question which is Whether the Forreign Attachment for the debt due unto the Intestate after the promise broken be such a dispensation with the promise that no Action now lieth for the Administrator upon the breach of the promise It was agreed and resolved that the promise was dispensed with and no action lay upon the breach of it for the debt due by Tenant unto the Intestate which was the ground and cause of the promise made unto Spink the Plaintiff is taken away by the judgement had in London upon the custome of Forreign Attachments Et sublato fundamento fallit opus And therefore if after the promise broken there had been a Recovery had of the principal debt by the Plaintiff as Administrator or otherwise there had been a Release made unto the Defendant Now the Action upon the Case upon the promise would have failed inasmuch as the debt which was the consideration and ground of the promise is gone and so the dampnification which he should have had by not performance of the promise faileth And agreeing to this resolution was the Case of one Bardeston and Humfry cited to be adjudged whereupon an accompt he that was found in Arrearges upon a consideration of forbearance by one moneth promiseth payment of them And those Arrerages thus due being attached in the hands of the Accomptant after the promise broken It was held that no Action might afterwards be maintained upon the breach of promise The Case concerning the Prisage of Wine KIng Edward the third in the first year of his Reign doth by his Letters Patents bearing date the same time grant unto the Mayor and Commonalty of London that no prisage shall be of any of the Wines of the Citizens of London But they shall be free and discharged from the payment of all manner of Prisage George Hanger being a Citizen and Freeman of London and Resient within the City fraughteth four several Ships with Merchandize to be transported beyond the Seas the which four Ships being disburdened of the said Merchandize are laden with Wines Two of the Ships came up the Thames at London and before any unbulking of them George Hanger maketh Frances Hanger being his wife his Executrix and dieth Afterwards the other two Ships came up to London Sir Thomas Waller being cheif Butler of the King by virtue of Letters Patents made unto him Demandeth the payment of Prisage of the said Frances Hanger for the Wines in the said four Ships that is to say To have of every of the Ships one Tun before the Mast and one other Tun behind the Mast She denieth the payment of it whereupon the said Sir Thomas Waller as chief Butler exhibiteth his Information into the Kings Bench against the said Frances Hanger Whereunto the said Frances pleadeth a special Plea in Barre shewing the whole matter as abovesaid opon which Sir Thomas Waller demurreth in Law The Questions of this case are two The first is whether for the Wines which came up the Thames in the two Ships before the death of George Hanger any Prisage ought to be paid unto the King or not The second is whether any Prisage ought to be paid for the Wines which were upon the Sea in the Ships before the death of the said George Hanger but came not up the Thames until after the death of George Hanger The case was argued at several times by Sir Henry Mountague Knight then Recorder of London now Lord chief Justice of the Kings Bench Thomas Coventry then Utter Barister now Solicitor General unto his Majesty and Francis Mingay an Utter Barister of the Inner Temple on the behalf of Frances Hanger and by Henry Yelverton then an Apprentice of the Law of Graies-Inn and now Attorney General unto his Majesty and Thomas Crew of the same Inn likewise an Apprentice of the Law on the part of Sir Thomas Waller Likewise it was argued at several times by the Judges of the Kings Bench that is to say first by Sir Thomas Fleming Chief Justice of the Kings Bench Sir Christopher Yelverton Sir David Williams and Sir Iohn Crook and afterwards by Sir Edward Cook Chief Justice of the Kings Bench Sir Iohn Crook Sir Iohn Dodridge and Sir Robert Houghton And Sir Edward Crook Sir Christopher Yelverton Sir David Williams and Sir Iohn Dodridge were of opinion that judgement ought to be given for Frances Hanger against Sir Thomas Waller for they conceived upon the reasons following that no Prisage ought to be paid neither for the Ships that came in after the death of George Hanger nor for the Ships that came in before the death of George Hanger but they all were to be discharged of the payment of Prisage by vertue of the said Charter made by Edward the third unto the Mayor and Commonalty of London First in regard thath these Wines thus in each of the four Ships aforesaid remained notwithstanding the death of George Hanger to be still the Wines of George Hanger for if Frances Hanger the Executrix were to bring an Action for the recovery of them she should bring an Action as for the Wines of George Hanger if Frances Hanger should be wained or attainted of Felony or Treason those Wines should not be forfeited insomuch as they are not the Wines of Frances Hanger but of George Hanger If a Judgement in Debt or other Action should be had against Frances Hanger as Executrix of George Hanger these Wines should be taken in execution as the Wines of George Hanger and so these Wines thus brought in before and after the death of George Hanger continuing as yet the Wines of George Hanger to be recovered as his Wines to be taken in execution as his Wines and to prevent a Forfeiture because these Wines shall be said to be the Wines of George Hanger whereby they may be protected and priviledged from the payment of Prisage within the words intent meaning of the before recited Charter made by King Edward the third which pointeth rather at the Wines then at the person of George Hanger
King Edw. the 3. bereaving the King and Commonwealth of these great benefits and commodities is against the Law and so ought to be repealed And day was given accordingly to put in their Plea At which time many of the old Merchants-Adventurers being willing that trial should be made whether the benefit intended unto the Commonwealth might be compassed did shew to their obedience unto the King and desire of the good of their Country Surrender up their Patent into the hands of his Majesty since which time it being found by experience that the project had not that success which they expected and likewise Cloth and Wooll lay dead because there was no vent for them abroad The King according to his power reserved unto him in his Patent by which he erected and created the new Company of Merchants Adventurers of London did make repeal and revocation of the said New Patent and new Company and did redeliver unto the old Merchants their Patent confirming it and likewise by another Charter did enlarge the Liberties and Priviledges of the old Merchants by reason of which Grace of the King the old Company of Merchants-Adventurers of England are reestablished in that estate wherein they formerly were and they do now trade again as formerly they did to the great content of the Subject and benefit of the King and Country Certifying Indictments upon Certioraries IOhn Forner Iohn Evans and divers others being Indicted before Sir Thomas Hayes Lord Mayor of London Sir Henry Mountague Serjeant unto the King and Recorder of London Sir Thomas Lowe and divers others by vertue of a Commission granted unto them a Certiorari was directed unto them as Justices of Peace out of the Kings Bench for the certifying the said Indictment upon which Certiorari no return was made whereupon a second Certiorari was awarded unto the said Commissioners commanding them to certifie the said Indictment upon a pain upon which Certiorari a return was made in this manner That is to say that King H. 6. in the 23. year of his Reign by his Letters Patents bearing the same date did grant unto the Mayor Aldermen and Sheriffs of London that they should not be compelled upon any Writ directed unto them to certifie the Indictments themselves taken before them but only the Tenors of them the which they have done accordingly and Exception being taken unto this Return for the insufficiency of it it was resolved by Sir Edward Cook Chief Justice of the Kings Bench Sir Iohn Crook Sir Iohn Doddridg and Sir Robert Haughton that the return upon the reasons hereafter following was insufficient For first the Letters Patents being granted unto them by the name of the Mayor Aldermen and Sheriffs of the City of London warranteth only the not certifying of Indictments taken before them as Mayor Aldermen and Sheriffs of London and where the Writ is directed unto them by that name and they do not excuse them in Case where the Writ is directed unto them as Justices of Peace and where the Indictments are taken before them as Justices of Peace by virtue of the Kings Commission And howsoever the Mayor and Aldermen are Justices of Peace by Charter yet insomuch that they are distinct powers return made by them by the name of Mayor and Aldermen where the Writ is directed unto them as Justices of Peace will not be good Secondly there being a Resumption made by Act of Parliament in 28. H. 6. whereby all Lands Tenements Grants Rent and Fees granted since the first day of his Reign were resumed the Letters Patents made in 23. H. 6. unto the Mayor and Commonalty are annihilated and made void and so no hold may be taken of them and the Statute made in 1. Edw. 4. cap. 1. only confirmes those priviledges not heretofore revoked and repealed by Act of Parliament or otherwise and howsoever there be a Charter made by H. 7. in the first year of his Reign whereby restitution was granted of this priviledge yet no advantage may be taken of it because it was not spoken of upon the return and the Court may not intend it Thirdly the Letters Patents of the King being the sole ground and foundation to make the return good are not sufficiently returned unto the Court insomuch that it was said upon the return only that the King by his Letters Patents did grant unto the Mayor Commonalty and Sheriffs of London that they should not be compelled to certifie the Indictments themselves but it doth not appear that they were sealed with the Grand Seal and if they were not sealed with that Seal the Letters Patents may not be of any validity in Law howsoever they were sealed with the Exchequer Seal or Dutchy Seal in respect of which they may well be called the Letters Pattents of the King Fourthly the use hath alwayes been to remove Indictments and the Record of them upon a Certiorari awarded out of the Kings Bench and there was never any denial made of it before this time and in 5. Ed. 6. where a Certiorari was directed unto them for the removing of an Indictment of a Woman which was Indicted for being a common Whore the Indictment was certified in obedience unto the Writ although in the end of the return they shewed their Charter and prayed that it might be remanded because it was an Indictment only warrantable by the custome of the City and not by the Common Law And the Court was of opinion in the return at the Bar to have imposed a Fine and to have awarded a third Certiorari but it was stayed and the second return was amended Concerning Orphans Portions THe custome of London is that if any Freeman deviseth and or other Legacies of goods unto an Orphan that then the Mayor and Aldermen have used to take the profits of the Land and to have the disposition of the Legacies until such time as the Legatees shall attain unto the age of twenty one years or otherwise being a woman should be married and if the disposition of the profits of the Lands or of the personal Legacies were declared by the Testator in his Will that then the Mayor and Aldermen have used time out of mind of man to convent the person trusted by the Will of the Testator before them and to compel him to find Sureties for the true performance of the Legacies according to the Law of the Realm and the Will of the Testator and if they refuse to find Sureties then it is lawful to imprison them until they find Sureties The Widow of a Freeman of London dwelling in Middlesex bequeathed a Legacy of a thousand pound unto her Daughter after all Debts and Legacies paid and upon condition that she should not marry without the assent of her Executor and maketh a Freeman her Executor and dieth The Executor is convented before the Court of Mayor and Aldermen and required to put in Sureties unto the Chamberlain of London according to the
hath three great commodities that is to say Air for his Health Light for his profit prospect for his pleasure may not be taken away no more then a part of his House may be pulled down whereby to erect the next House adjoyning And with this resolution agreeth the Case of Eldred reported by Sir Edw. Cook in his Ninth Report fol. 58. where he sheweth the ancient form of the Action upon the case to be quod messuagium horrida tenebritate obscuratum fuit but if there be hinderance only of the prospect by the new erected House and not of the Air not of the light then an Action of the case will not lye insomuch that the prospect is only a matter of delight and not of necessity As to the second it was resolved by the opinion of the aforesaid Judges that the custome of London will not enable a man to erect a new House upon a void space of ground whereby the ancients lights of an old house are stopt up for first the owner of the old house having possession of a lawful easment and profit which hath been belonging unto the house by prescription time out of mind of man may not be prescribed out of it by another thwarting custome which hath been used time out of mind of man but the latter custome shall rather be adjudged to be void and Prescription against a Prescription will never be allowed by the Law 2. It may well be that before time of memory the owner of the said void piece of ground granted unto the owner of the House to have his Windows that way without any stopping of them the which being done and continued accordingly hath begotten a prescription the which may not be defeated by the Allegation of a general custome and with this resolution doth agree a case adjudged Trin. 29. Eliz. Rot. 253. in the Kings Bench whereupon an action upon the case brought by Thomas Bloond against Thomas Mosley for erecting of a House in the County of the City of York whereby the ancient lights of his House were stopped up The Desendant did plead a Custome for the City of York as there is here for the City of London and adjudged that the Custome was naught whereupon the Plaintiff had his Judgement But if the Houses had been new erected Houses or otherwise Windowes had been newly made Windows in that ancient House the erection of that new House upon that void space of Ground would have been lawful notwithstanding that the Windows and Lights be stopped up for it shall not lie in the power of the owner of the ancient House by setting out his new Windows to prevent him that hath the void peice of Ground from making the best benefit of it As to the third point it was conceived that if the new house be only erected upon the ancient foundation without any inlargement either in Longitude or Latitude howsoever it be made so high that it â—oppeth up the lights of the old house yet he is not subject unto any action because the law authorizeth a man to build as high as he may upon an ancient Foundation and it is no reason to foreclose a man from making his house convenient unto his estate and degree by building up higher when there is no other impediment but only some windowes which are built out over his house and agreeing to this seemeth the old book of 4. E. 3. 150. to be where an Assize of Nusans was brought for erecting his house so high that the light of the Plaintiff in the next adjoyning house was disturbed by it and the Plaintiff upon the opinion of Herl Chief Justice did not proceed in the Assize but let it fall to the ground but if the new builded house exceeded the ancient foundation whereby that excess is the cause of stopping up of lights then is he subject unto the action of him whose light is stopped up as it may appear by 22. H. 6. 25. And in the case at the Bar Judgement was given for the Plaintiff because he had brought his action for building of a new House upon a void piece of ground by which his Windows were stopt up And Keeme the Defendant only justifieth by the Custome the erection of the House upon an old Foundation and upon the void piece of ground the which is not any answer at all unto that which the Plaintiff layeth unto the charge of the Defendant Touching the Custome of Citizens leaving that Trade whereunto they have been Apprentices seven years and betaking themselves to other Trades IOhn Tolley having been an Apprentice in London by the space of seven years unto a Wool-Packer after the seven years expired is made a Freeman of London afterwards he leaveth the Trade of a Wool-Packer and betaketh himself to the Trade of an Vpholster and doth exercise that Trade by many years whereupon one Thomas Allen an Informer doth exhibit an Information in the Court of the Mayor of London as well for the King as for himself upon the branch of the Statute made in the fifth year of the late Queen Elizabeth cap. 4. whereby it is enacted That after the first day of May next ensuing it shall not be lawful unto any person or persons other than such as now do lawfully use or exercise any art Mystery or manual occupation to set up c. any such occupation now used or occupied within the Realm of England or Wales except he shall have been brought up seven years at the least as an Apprentice in manner and form aforesaid nor to set any person on work in such Mystery Art or Occupation being not a Workman at this day except he shall have been an Apprentice as aforesaid or else having served as an Apprentice as is aforesaid shall or will become a Iourney-man or hired by the year upon pain that every person willingly offending or doing the contrary shall forfeit and lose for every default fourty shillings for every moneth And he sheweth that Iohn Tolly the now Defendant hath exercised the trade of an Upholster by the space of fourty moneths whereas he was never an Apprentice to that trade by the space of seven years contrary unto the aforesaid Statute whereby the said Thomas Allen doth demand the forfeiture of eighty pound unto the King and himself whereof he the said Allen doth require the one moyety according to the form of the said Statute And this Information being removed out of the Court of the Mayor of London by Certiorari into the Kings Bench the said Iohn Tolley doth plead a special Plea in Bar shewing that there is a custome of London which hath been used time out of mind of man That every Citizen and Freeman of London which hath been an Appretice in London unto any trade by the space of seven years may lawfully and well relinquish that trade and exercise any other trade at his will and pleasure And sheweth further That all the Customes
of London were confirmed by K. R. 2. in the Parliament holden in the seventh year of his Raign And averteth That he had served one in the Trade of a Wool-Packer as an Apprentice by the space of seven years and that he was a Citizen and a Freeman of London and that he did relinquish the trade of a Wool-Packer and betook himself to the trade of an Upholster as lawful it was for him to do and so he demandeth the Judgment of the Court if this Information against him will lie and upon this Plea in Bar the said Thomas Allen doth demur in Law The Questions in the Case were these 1. Whether the custome of relinquishing one Trade after that he hath been an Apprentice by the space of seven-years and betaking himself to another Trade wherein he hath not been an Apprentice be good or no 2. Whether it may be taken as a custome or no or whether it shall be said to be the Common Law of the Realm and so the Allegation of it as a custome nought 3. Whether the Statute of the Confirmation of the Customes of London made in the seventh of R. 2. as it is pleaded shall be taken to be an Act of Parliament or only a Confirmation made by the Letters Pattents of the King in Parliament 4. Whether the branch of the statute of 5. Eliz. cap. 4. being in the Negative inhibit all men to exercise the trade when they have not been Apprentice seven years thereunto is a Controlment of the custome of London which can receive no support by the Statute of confirmations and whether that custom shall stand good in opposition of that branch 5. Whether the trade of an Vpholstor be a Trade restrained by the Statute of 5. Eliz. so as Iohn Tolley may exercise it notwithstanding that he hath not been an Apprentice to it by the space of seven years according to the course of the Common Law 6. Whether the Court of the Mayor of London be such a Court of Record as that an Information may be exhibited there 7. Whether a Moyety may be demanded of this Forfeiture by the Informer when as a Proviso in the Stat. of 5. Eliz. 4. doth appoint the levying gathering and receiving of such Forfeiture as falls in a City or Town Corporate to the Mayor or other head Officers to the use and maintenance of the same City or Town Corporate As to the first Question Which is the lawfulness of the custome it was agreed to be good for it might have a reasonable construction beginning and just cause for the putting of it in Execution insomuch that London being a famous City for traffique and commerce cannot but sometimes have Merchants and Tradesmen in it who by misadventure of Pyrates or Shipwrack in the Seas or by conffiscation of their Goods in Forraign Countries abroad oâ— by casuâ—lties of Fire c. at home have their Estates sunk whereby they are not able for want of Stock and Meaneâ— to continue that course of Merchandizing and Trade wherein they have been brought up there being great Stocks and sums of money requisite for the continning of it whereupon they are forc'd to leave that course and betake themselves to some other Trade proportionable to that means which they have left And it were lamentable that wherâ— inevitable casualties have disabled a man to proceed in that course wherin he was brought up he now should not be permitted to acquire his living by any other Trade Also it may be that the Trade whereunto he was an Apprentice requireth great labour and strength of body as the Trade of a Smith Carpenter and such like and that through sickness or other disasters befaln him he is become infirm in body and weak in strength whereby he is not able to use that Trade Now to debaâ— him of all other Trades which are more be fitting his crazy body were somwhat unreasonable Wherefore to meet with these inconveniencies and to give incouragement unto the Citizens and Freemen of London this Custome of relinquishing the Trade whereunto they have been Apprentices by the space of seven years and betaking themselves unto another Trade hath had a perpetual allowance and being grounded upon so good reason still hath its continuance and may not any wayes be called in question for the unreasonableness of it As to the second question scil Whether the Allegation of it as Custome in London that every Citizen and Freeman of London may relinquish his Trade wherein he hath been an Apprentice by the space of seven years and exercise another Trade or no be warrantable by the Rules of Law or no insomuch that before the Stat. of 5. Eliz. 4. which restraineth it it was lawful for every man to use what Trade he would although he had not been an Apprentice by the space of seven years And then it being the Common Law of the Realm that a man might use any Trade although he had not been an Apprentice for seven years it may not be alledged by way of custome in London but it ought to have been shewed as the custome of the Realm for that which is the Common Law of the Realm is the custome of the Realm It was answered and agreed That as this custom was alledged in this information the allegation of it was warrantable in the Law and it may well be said to be a custome before the Stat. of 5. Eliz. For first The custome is restrained to a Citizen and Freeman of London so as he that is not a Citizen and Freeman may not enjoy the benefit of this custome and it being restrictive of the Common Law which giveth power unto all as well Freemen as Citizens to exercise what Trade they will standeth well in custome and may well be alledged by way of custome This is alledged to be the custome of London and so is tyed to a particular place and howsoever it may be the Common Law of the Realm in other places yet in London which is for the most part governed by their particular Customes it may well be said a Custom and so the Plea in Bar good enough as to this exception As to the fourth Question soil Whether the branch of the Statute of 5. Eliz. 4. be a repeal and controul of the Custome of London concerning the exercise of a Trade where he hath not been an Apprentice by the space of seven years It was resolved that the Custome of London was of force and was not any wayes controuled by that branch First In regard that this being a particular Custome used in London the general words of the branch of that Statâ— shall not be taken to extend to the repeal of it For so much regard is to be given unto that City being Camera Regis and as dear to him as the Apple of his Eye that the Customes of that place shall not be overthrown by the extent of general words where there is no particular provision
or the party and afterwards are sent by Writ to the Exchequer or any other the Kings places with their Causes the same Prisoners after they are delivered in the Kings Court ought to be sent to the said City to answer to the parties and stay there for their deliverance Item those which have Tenements within the said City shall not be sufferd to strip or waste their Tenements Demeasne nor to pull them down in deforming or defacing of the City unless it be to amend them or build them up again and any that doth it or beginneth to do it shall be punished by the Mayor and Aldermen for the offence according to the custome of the City Item if Walls Penthouses or other Houses whatsoever within the said City stretching to the High street be so weak or feeble that the People passing by mistrust the peril of some suddaih Ruine then after it is certified to the Mayor and Alderman by Mason and Carpenter of the City sworn or that it be found in the Wardmore that the danger is such then the same Mayor and Aldermen shall cause the parties to be warned to whom the same Tenements belong to amend them and repair them so soon as conveniently he may and if after such warning they be not amended nor begun to be amended within fourty dayes then next following then shall the said Tenements be repaired and amended at the cost and charges of the said City untill the costs be fully levied of his Goods and Chattels or other his Tenements if â—eed be Item if any House be found within the said City or the Suburbs of the same covered with Straw Reed or Thatch he to whom the House belongeth shall pay to the Sheriffs for the time being fourty shillings and shall be compelled to take away the same covering Item if any House within the said City be burning so that the flame of the Fire be seen out of the House he which dwelleth in the said House shall pay to the Sheriffs forty shillings in a red Purse Item the Mayor Aldermen and Sheriffs and all other Officers and Ministers of the said City are to be chosen by the same City viz. At the time when the Mayor should be chosen the commons of the same City shall by custome be assembled in the Guild Hall and the same commons shall make election of two honest men of the said City of whom the one shall be Mayor and the names of the said two honest men shall be carried before the Mayor and Aldermen which are for the time within the Chamber of the Guild-Hall And then the one of them shall be chosen to be Mayor by the said Mayor and Aldermen by way of Screame and the said Mayor so newly chosen the morrow after the Feast of Simon and Iude shall be presented before the Bacons of the Exchequer at Westminster or in their absence to the Constable of the Tower and afterwards shall be presented to our Sovereign Lord the King himself according to the content of the Charter of the said City and the said Mayor shall have the Government of the said City under the King for the year following and the said Mayor shall take fifty Marks a year for the of Coâ—n and fifty Marks in time of Peace of the Merthants of Anzens Corby and Neele according to the ancient Orders thereupon made and every Mayor shall hold his general Court at the Guild Hall the Munday after the Feast of the Epiphany and then shall be assembled all the Aldermen of the same City and all the Constables Scavengers and Beadles shall be sworn anew well and faithfully to do their office during the time they shall be Officers and the Wardmotes held by the Aldermen and the default found shall be then delivered up by the said Aldermen in writing and the default found in the Wards shall be enquired and examined and the Mayor for the time being by custome of the same City for maintainance of the Peace and for the quiet of the City hath authority to arrest and imprison the disturbers of the Peace and other malefactors for rebellions or lewd expences and other defaults according to their discretion without being appeached or afterwards impleaded for the same Item No Mayor shall be chosen within the said City before that he hath been Sheriff of the same City a year before Item The Mayors of London which have been for the time are accustomed to have their Sword born upright before them within the said City and without the putting the same down in the presence of any except the King and that Sword is called the Kings Sword Also the Sheriffs of London are chosen by custome of the said City on St. Matthews day in the Guild-Hall viz the one shall be chosen by the Mayor and the other by the Commons and the said Sheriffs shall afterwards be sworn within the said Guild-Hall and the morrow after St. Michal presented into the Exchequer by the Constable of the Tower according to the form of the Charter of the City as is aforesaid and the same Sheriffs shall have Free Election of all their Officers and of their Farmours and Bayliffs as well within the City as the County of Middlesex and of the Goalers of the Prisons within the said City at their will and the same Sheriffs pay and are Accomptants yearly to the Kings Exchequer for the Farm of the said City and County of Middlesex according to the form of the said City and Charter and by reason of that Farm the said Sheriffs ought to have the ancient Tolls and Customes of Merchandizes coming into the City and going out of the same and Forfeitures Fines and Amerciaments and all other commodities of ancient time belonging to their Office And no Merchandizes shall pass out of the City by Land nor by Water by Cart Horse nor Portage by men without a Warrant sealed by the said Sheriffs and Forreigners must pay for their Issue according to the ancient custome Item The Aldermen every year are elected at the Feast of St. Gregory and sworn and presented to the Mayor and the said Aldermen are chosen by men of the same Ward which Aldermen ought to keep their Wardmotes Item Upon the death of the Alderman of any Ward the Inhabitants in the Ward are to chuse a new Alderman for their Ward whom they think good and are to certifie the Lord Mayor of their choice who is to declare the same to the Court of Aldermen at their next meeting and then to give the Ward notice of their liking of the choice but if it be an easie and quiet Ward then by order either the Lord Mayor or eldest Knight on the Bench is to have the same Ward as Alderman thereof yet the Election is in the Ward absolute of themselves whom they will chuse THE COMMISSION AND ARTICLES OF THE WARD-MOTE INQUEST By the MAYOR To the Alderman of the Ward 1. VVE charge and command you that upon St.
persons for dividing Houses or Inmates to write the Names and addition to the present Landlord receiving the Rent and the Names of the Tenants in possession and of the Inmate in any house and also to write in the Margent on the side of every Presentment the Name or Names upon whose evidence you make such Presentment An Act of Parliament for the Preservation of the River of Thames Made in the 27. year of King Henry the 8. VVHere before this time the River of Thames among all Rivers within this Realm hath been accepted and taken and as it is indeed most commodious and profitable unto all the Kings Liege people and chiefly of all other frequented and used and as well by the Kings Highness his Estates and Nobles Merchants and other repairing to the City of London and other places Shires and Counties adjoyning to the same which River of Thames is and hath been most meet and convenient of all other for the safegard and ordering of the Kings Navy conveighance oâ— Merchandizes and other necessaries to and for the Kings most honourable Houshold and otherwise to the great relief and comfort of all persons within this Realm till now of late divers evil-disposed persons partly by misoâ—dering of the said River by casting in of Dung and other filth laid nigh to the Banks of the said River digging and undermining of the Banks and Walls next adjoyning to the same River carrying and converghing away of Way-shides Shore-piles Boards Timber-work Ballast for Ships and other things from the said Banks and Walls in sundry places by reason whereof great Shelfes and Risings have of late been made and grown in the farway of the said River and such Grounds as lye within the Level of the said Water-mark by occasion thereof have been surrounded and overflown by rage of the said Water and many great breaches have ensued and followed thereupon and dayly are like to do and the said River of Thames to be utterly destroyed for ever if convenient and speedy remedy be not sooner provided in that behalf For Reformation whereof be it enacted established and ordained by the King our Soveraign Lord and by the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That if any person or persons hereafter do or procure any thing to be done in the annoying of the Stream of the said River of Thames making of Shelves by any manner of means by Mining Digging casting of Dung or Rubbish or other thing in the same River or take pluck or conveigh away any Boards Stakes Piles Timberwork or other thing from the said Banks or Walls except it be to amend and the same to repair again or dig or undermine any Banks or Walls on the Water side of Thames aforesaid to the hurt impairing or damage of any the said walls Banks then the same person or persons and every of them shall forfeit and pay for every time so offending one hundred shillings the one Moyety thereof to be to the King our Soveraign Lord and the other Moyety thereof to the Mayor and Commonalty of London for the time being the same to be recovered obtained by the Mayor Commonalty of London by Bill or Plaint Writ of debt or information severally against every offender in any of the Kings Courts in which Actions and Suits or any of them the party Defendant shall not be essoyned or wage his Law or any protection to be allowed in the same And it is further enacted by the Authority aforesaid that if complaint shall happen to be made to the Lord Chancellour of England Lord Treasurer Lord President of the Kings Councel Lord Privy Seal or to any of them by any person or persons or body politick that Sir Thomas Spert Knight now having the Office and ordering of for ballasting of Ships or any other that hereafter shall have the Office and Order of ballasting of Ships do take any ballast for Ships near the said River of Thames and do not take for parcel of the said ballasting the Gravel and Sand of the Shelfes between Greenhith and Richmond within the said River of Thames or in any place or places that is or shall be unto the damage or annoyance of the said River of Thames or in any part thereof that then upon every such complaint the said Lord Chancellour Lord Treasurer Lord President of the Kings most honourable Councel Lord Privy Seal and every of them calling both the Cheif Justices of either Bench or one of them shall have power and authority from time to time to hear and finally determine every such complaint by their discretion and to put such order therein for the taking of ballast for Ships upon every such complaint as by their discretions shall seem most convenient for the preservation of the said River of Thames and the parties offending such order shall suffer imprisonment and make no less Fine then five pound to the Kings use for every time offending or breaking the same Provided alwayes and be it enacted that it shall be lawful to every person and persons to digge carry and take away Sand Gravel or other Rubbish Earth or thing lying or being in or upon any Shelfe or Shelfes within the said River of Thames with out let or interruption of any person or persons or paying any thing for the same any thing contained in this present Act to the contrary notwithstanding An Act of Common Councel concerning the conservation and cleansing of the River of Thames made the 28. of September in the 30. year of King Henry the 8. VVHere by the Statute made in the 27. year of the Raign of our Soveraign Lord King Henry the eight among other for Reformation of the misordering of the River of Thames by casting in Dung and other filth many great Shelves and other risings have been of late grown and made within the same River By reason whereof many great breaches have ensued by occasion thereof which of like shall be the occasion of the utter destruction of the said River unless that the same Law be put in due Execution according to the true intent and meaning thereof Wherefore for a further Reformation of the same and to the intent that the said good and wholesome Statute may be put in more Execution and better knowledge of the people It is enacted by the Authority of this Common Councel that Proclamation may be made within this said City and the same to be put in writing and Tables thereof made and and set up in divers places of this City that it shall be lawfully to every person or persons to dig carry away and take away Sand Gravel or any Rubbish Earth or any thing lying or being in any Shelve or Shelves within the said River of Thames without let or interruption of any person or persons and without any thing paying for the same and after that to sell the same