Custome for the payment of a thousand pound according unto the time limited by the Will and according to the Will aforesaid The Executor denieth to find Sureties whereupon he was committed to prison and a Habeas Corpus being awarded out of the Court of Kings Bench to have the Body of the Executor together with the cause all this matter appeareth upon the return And now it was moved by Richard Martin late Recorder of London then an Apprentice of the Law that the return was insufficient and so the Executor ought to be enlarged First in regard that the ground of the imprisonment was the Custome of London and the custome is against the Law and void insomuch that it enforceth an Executor to find Sureties for the payment of a Legacy according unto the Will where the law requireth that debts be paid before such time as Legacies be performed and the Law giveth an election unto the Executor to pay which of the Legacies he will in case there be not sufficient to pay all the debts and legacies of the Testator but this exception was disallowed by the said Court insomuch that the custome of London appeareth by the return to be that he shall find Sureties for the performance of the Legacies according unto the Law of the Realm and the Will of the Testator So as if the Executor had not sufficient to pay debts and legacies he hath the same power and liberty after such time as he hath found Sureties as he had before Secondly except on was taken because it appeared by the return that the Devisor was a woman and also only the Wife of a Freeman and not a Free-woman and she is not within the custom of London which only speaketh of a Freeman But this exception was over-ruled for a woman being a Free-woman within the Statute of Magna Charta cap. 29. which enacteth that no Freeman shall be taken or imprisoned c. but by the lawful judgement of his Peers So that she being a Barroness or Countess shall be tried by her Peers upon an Indictment preferred against her she shall also be reputed a Freeman within this custome Secondly the Wife of a Freeman having the liberty and priviledge to Trade in the City and so able to take benefit by it she shall also be bound by the customes of it Thirdly howsoever she was dwelling out of London at the time of the Will made she is a Freeman within the compass of the custome Fourthly it was objected that this custome of London concerning Orphans was an antiquated custome and had not been put in use by many years and therefore ought not now to be put in ure to take away the liberty of a man and especially also because the life of a custome is the usage but this exception was over-ruled for this custome is dayly put in Ure The custome in not removing body and cause upon Habeas Corpus A Petition being affirmed in London by one Hill a Citizen and Freeman of London against another Citizen and Freeman of London upon a Bond of a hundred pound a Summons is awarded against the said obliged and the pretext being returned that he hath nothing whereby he may be summoned within the City upon a Surmize made by Hill the Obligee that one Harrington a Citizen and Freeman of London is indebted in a hundred pound unto the first Obligor a Summons is awarded according to the custome of London of Forreign Attachments for the warning of Harrington who is warned accordingly whereupon Harrington procureth a Habeas Corpus for the removing of his body together with the cause into the Kings Bench upon which Writ a return is made in this manner that is to say That London is an ancient City and that time out of mind of man the Mayor Aldermen and Citizens of London have had Conusans of all manner of Pleas both real and personal to be holden before the Mayor Altermen and Sheriffs of London in London and that in no action whatsoever they ought to remove the cause out of London into any other Court and do moreover shew a confirmation made by R. 2. in the seventh year of his Reign of all their customes and so for this cause they had not the body here nor the cause And exception being taken to the insufficiency of this return it was agreed and resolved by the whole Court of Kings Bench that this return made was ill for common experience teacheth that the usual course is and alwayes hath been that upon Habeas Corpus the body together with the cause have been removed out of London into the Kings Bench and likewise upon Certioraries awarded out of the Kings Bench. Records have been certified out of London into that Court for Justice being to be done unto the Citizens of London as well in that Court as in the 〈…〉 proper Court the Court of London being an inferiour Court unto the Court of Kings Bench where the King is supposed to sit in person ought to yeild bedience unto the Writs awarded out of that Court as the Supetiour Court but if the cause should be such that there should be a failer of Justice in the Kings Bench upon the removing of the cause because it is only an action grounded meerly upon the custome of London then a return made of the special matter will be warrantable or otherwise if the return be made that the custome of London is that no cause which is a meer customary cause wherein no remedy can be had but only in London according unto the custome of London may well be allowed so as the cause specially be returned into the Court whereby it may appear unto the Court that it is such a cause which will not bear action at the Common Law for it is usual in the Kings Bench that if the cause returned unto the Court upon the Habeas Corpus appear to be such a cause as will bear an action only by the custome and not at the Common Law the Court will grant a Procedendo and send it back again to London as if the cause returned appear to be an action of Debt brought upon concesit se solvere or to be an aaction of Covenant brought upon a Covenant by word without any specialty for these be meer Customary actions which cannot be maintained but by the custome of London and therefore that shall be remanded for if the Kings Bench should retain these causes after such time as they are removed and should not remand them there would be failing of Justice and the Judges of the Kings Bench in the person of the King do say Nulli negabimus nulli vendemus nulli differemus justitiam and the reteining of these causes would be a denying of Justice wherefore they do grant a Procedendo and remand it The case concerning payment of Tythes in London RIchard Burrel being seized in his Demesne as of Fee of a House called Green Acre a Shop and Ware-house in
after the delivery of the Bill shall make Summons to the Tenants demand by witness of two Free holders men of the City that they be at the Guild Hall the Saturday next following to see the Recogniâ—ance if they will against which Saturday the Defendant may sue the next Friday before together and summon the Jury and so afterwards against the Saturdayes from fourteen dayes to fourteen dayes at his will and so may the Tenants sue if they will for their celiverance and the gathering of the Pannels of such Juries shall be done by the Sheriffs and their Ministers or by the Mayor and Aldermen if any of the parties will require it upon any reasonable cause in such sort as is used in Assize of Fresh-force and in such Assizes of Mort d'ancest the parties may be assigned as at the Common Law and the Tenant may vouch to warrant within the City and also in Forreign County if the Vouchee have no Lands within the City and if the Tenants plead release bearing date in Forreign County or other Forreign matter that cannot be tryed within the City or that the Vouch to warrant in Forreign Counties he that hath nothing within the City then at the Suit of the party shall cause the Record to come into the Kings County by Writ directed to the Sheriff and Coroner and there shall such Forreign Pleas and Forreign Vouchers be tryed and determined and sent back again to the said Sheriffs and Coroners to go forward and proceed according to the custome of the City and continuance shall be made in such Assizes upon the causes proceeding and upon other causes reasonable and when the Assizes shall be determined and Judgement given then the same Assizes shall be ingrossed and entred upon Record by the said Sheriffs and Coroners and afterward sent to the Guild-Hall to remain there of Record according to the Order of Assize of Fresh-force hereafter following Assizes of Novel Disseizen called Fresh-force in London THe Assizes of Novel Desseizen called Fresh force of London and Tenements and Rents within the City of London of Disseizins made within 40. weeks are holden and determinable before the two Sheriffs and the Coroner of the said City in common every Saturday in the Guild-Hall except certain times wherein the Assize cannot be holden for reasonable cause and the process thereof is such viz. when any man is grieved and that he be disseized of his Free-hold within the said City or the Suburbs of the same he shall come to any Hust holden at the Guild-Hall or for default of Hust in the Chamber of the Guild-Hall in the Assembly of the Mayor and Aldermen any Munday and shall make there a Bill and the Bill shall be such viz. A de B. queritur versus ss C. de D. de libero tenemento suo in parochia de E. in Suburb London And the same Bill shall be inrolled and upon that shall be made another Bill containing all the matter of the first Bill by the common Clark of the City making mention of the title of Hust or of the day of the Assembly of the Mayor and Aldermen and then the Bill shall be sent to the Sheriffs or to either of them to do process and right unto the parties and then although the Bill be served the Wednesday then next following that is to say the Minister of the Sheriffs to whom the Bill is delivered shall summon the Tenant or Tenants named in the said Bill of Assize by the view of two Freemen of the City and that of the Tenants from whom the rent is supposed to be issuing and then it shall be said to the Tenants that they keep their day at the Guild-Hall the Saturday then following at their peril and the names of those which are summoned shall be endorsed upon the backside of the Bill and then may the Plaintiff sue to have the Assize gathered and the Jury summoned against such Saturday or against other Saturday after at his pleasure and so may the Tenants sue for their deliverance if they will and such summons shall be made the Friday before the said Saturday and the Array of the Pannels of the Juries shall be made by the Sheriffs or their Ministers or by the Mayor and Aldermen if any of the parties upon reasonable cause shall require it Also the same Assizes shall be pleaded and recorded for the greater party also as elsewhere at the Common Law and if release bearing date in Forreign County bastardy or other forreign matters which cannot be tryed within the said City be alledged in such Assizes then the Plaintiff may sue and cause to come the Record in the Kings Court that the matter may be tryed as the cause requireth and when the matter is there determined the process shall be sent back to the said Sheriffs and Coroners or to their Successors to proceed forward before them according to the custome c. And you must note that there is no discontinuance in such Assizes neither is any mention made in the Record of the dayes betwen the Assizes taken and the day that the Assize shall be taken or Judgement given if it be not by necessary cause or that such Assizes be adjourned for special causes and when the Assizes are taken before the Sheriffs and Coroners as before is said and Judgement be given then shall such Assizes determined be entred of Record and afterwards shall be carried into the Chamber of the Guild-Hall to remain there in the treasury upon Record And note that no man may enter into any Tenements within the said City by force nor any Tenants hold by sorce and armes in disturbance of the peace De Curia Majoris London Custumis Civitatis ejusdem Diversis Casibus terminalibus in eadem Curia Curia Majoris of the said City of London is holden by the custome of the same City before the Mayor and Aldermen for the time being in the Chamber of the Guild-Hall or in Hust and that from day to day and there are treated determined and discussed the Pleas and matters touching Orphans Apprentices and other businesses of the same City And there are redressed and corrected the faults and contempts of those which do against the custome and ordinance of the City as well at the suit of the parties as by Enquest of Office and in other sort by suggestion according as the causes require and there they use to justifie Bakers Victuallers and Trades-men and and to treat and ordain for the Government of the City and for keeping the Kings peace and other necessary points of the City and according as the time requireth Item the Officers and Ministers of the said City being found faulty are to be cleared before the Mayor and Aldermen as well at the Suit of the parties by Process made as otherwise according to the discretion of the said Mayor and Aldermen Item the said Mayor and Aldermen use there to hold and determine Pleas of Debt and other
Secondly in regard that Frances Hanger being the Executrix of George Hanger is the representative person of George Hanger as to these Wines so that such Priviledges and Immunities as George Hanger was to enjoy if he had been living the same shall Frances Hanger have benefit of after his death And therefore notwithstanding Frances Hanger had been a Nun and so a dead person in Law to all intents and purposes yet she being made an Executrix and so the representative person of the said George Hanger shall be enabled to sue and be sued as concerning the personal Estate of the Testator so far as George Hanger himself might sue or be sued And if Frances Hanger being a Neif had been made Executrix now she being the representative person of George Hanger may well enough sue her Lord unto whom she is a Neif Reguardant or any other person whatsoever and the being of a Neif shall not be any disability unto her as to her office of Executrix-ship The same Law would have been if Frances Hanger had been wained and afterwards had been made Executrix for she putting on the person of George Hanger and representing him shall be clothed with the same Priviledges and Abilities as he was and so Frances Hanger being enabled by the common Laws of this Realm to sue and to be sued although she had been a Nun a Neif or a wained person because she represented the person of George Hanger whose Executrix she was shall be likewise capable of this priviledge of the payment of Prisage for the Wines of George Hanger as George Hanger was Thirdly this Charter made by King Edward the third being a Charter only to discharge the Citizens of London of the payment of Prisage and not a Charter whereby the Prisage of the Citizens of London is granted unto others shall have a liberal construction and not be streined unto a special intent as a Patent of charge shall be for it is evident by divers cases in our Books that Frances Hanger being an Executrix shall be taken to be within the remedy of an Act of Parliament to discharge her self of a burden imposed upon her in respect of George Hanger her Testator notwithstanding there was never so much as any mention made of her as Executrix in the Act of Parliament And therefore Frances Hanger being an Executrix shall have an attaint upon the Statute of 23. H. 8. chap. 3. to discharge her self of a false Verdict given against George Hanger whereby his Goods are to be charged and yet she is not named in the Act of Parliament So Frances Hanger being an Executrix shall have a Writ of Errour upon the Statute of 27. El. chap. 8. in the Exchequer Chamber to discharge her self of an Erroneous Judgement given into the Kings Bench against George Hanger whereby his Goods are subject to an Execution Likewise if George Hanger be Out-lawed upon a Writ of Cap. ad satisfaciend awarded upon a Judgement given in Debt or other personal Action against him Frances Hanger as Executrix of George Hanger shall take advantage of a general pardon made by Act of Parliament in the life of George Hanger and shall be suffered to plead it and to give satisfaction of the judgement given against George Hanger whereby she may be enabled to take benefit of the pardon the which being so that Frances Hanger is a person capable to discharge her self of a false Verdict of an Erroneous Judgement of an Out-lawry pronounced against George Hanger her husband where the Statute by precise words doth not relieve her à fortiori shall Frances Hanger in the case at the Bar be enabled to discharge her self of the prisage of these Wines within the Charter of Edward the third Fourthly by the same reason that the Butlarage shall be paid by the Executors or Administrators of an Alien for the Wines brought into England in case where the Alien owner of the Wines do die before such time as the Ships are unladen and way shall not be given to make an evasion to the payment of Butlarge upon an averment that the owner of the Wines is dead before the unbulcking of the Ships so by the same reason prisage shall not be paid for the Wines of George Hanger who dyed before such time as the Ships came in for those Wines shall continue the Wines of the Alien to make his Executors subject unto the payment of Butlarage so these Wines shall remain the Wines of George Hanger to free Frances Hanger his Executrix from the payment of prisage Fifthly there being nothing done in the case at the Bar to prevent George Hanger whereby his Wines should be made uncapable of the discharge of the payment of Prisage within the Charter granted by King Edward the third but only the death of George Hanger before the disburdening and unlading of his Ships and this being only the Act of God which by no power of man can be resisted nor wit prevented shall never turn him to that prejudice that a charge now shall be imposed upon his Wines the which ought not to have been if George Hanger had over-lived the time of breaking the bulk for it is a Maxim held and a principle of the common Lawes of the Realm that the Act of God shall never prejudice in case where there is not any Latches in the party and upon this reason is it that if one that is impleaded hath cause of priviledge because he is the menial Servant of the Lord Chancellour he shall not be prevented of priviledge by the death of the Lord Chancellour but he shall enjoy it that death notwithstanding likewise it would be a great discouragement to the Merchants to hazard their own lives in fighting against the Pyrates and in being upon the Seas when their deaths shall subject them to the payment of Prisage Sixthly in the case at the Bar there are four times to be observed the first of which is the time of the fraughting of the Ships and the sending them out of England beyond the Seas the second is the time of the arrival of the Ships and the unlading and disburdening of them beyond the Seas the third is the time of the lading of the Ships with Wines and the returning of them for England the fourth is the time of the arrival at the Port in England and the unlading of them here and three of these times were passed in the life of George Hadger when he was a member of the City and a Citizen as others are for all the four Ships and part of the fourth time also for two of the Ships for at the time that the Ships were Fraughted and sent out of England to the intent to bring in these commodities George Hanger was a Citizen so when the Ships arrived in the Port beyond the Seas and unladed themselves to receive â—n the Wines for which they went he continued a Citizen Likewise when the Ships
under pain of three shillings four pence 20. No Carts using dayly cartiage within this City nor Car shall have Wheels shod with Iron but bare under pain of six shillings 21. No man shall burn any Straw Rusnes or other thing Linnen or Woollen in the Streets by night or by day under pain of three shillings four pence 22. No man shall blow any Horn in the night within this City or Whistle after the hour of nine of the Clock in the night under pain of imprisonment 23. No man shall use to go with Vizards or disguised by night under like pain of imprisonment 24. That Night-walkers and Eveâ— droppers indure like punishment 25. No Hammer-man as a Smith Pewterer a Founder and all Artifice making great sound shall not work aâ—ter the hour of nine in the night not â—â—fore the hour of four in the morning under pain of three shillings four pence 26. No man shall cast into the Ditches of this City or the Sewers of this City without the Walls or into the Walls Grates or Gullets of this City any manner of Carren stinking Flesh rotten Fish or any Rubbish Dung Sand Gravel Weeds Stones or any other thing to stop the course of the same under pain of cleansing them at his own cost and charge under pain of Imprisonment 27. No man shall make any Widrawces in any of the Town-Ditches or the Town-Gullets under the pain of twenty shillings 28. No man shall build nigh the Walls of this City without License of the Lord Mayor Aldermen and Chamberlain under pain of throwing down the same and no Licence may be granted except that the Chamberlain freely at all times have convenient and needful ingross and entry going out and clear recourse 29. No man shall go in the Streets by night or by day with Bow bent or Arrows under his Girdle nor with Sword unscabberd under pain of imprisonment or with Hand-Gun having therewith Powder and Match except it be in an usual May-game or sight 30. No man shall after the hour of nine at the night keep any rule whereby any such sudden Out-cry be made in the still of the night as making any Affray or beating his Wife or Servant or Singing or Revelling in his house to the disturbance of his Neighbours under pain of three shillings four pence 31. No man shall make an Affray upon any Officer which with good Demeanour doth his message by Commandment from my Lord Mayor or any Alderman or Mr. Sheriffs or Mr. Chamberlain or misbehave himself in any Rayling upon any Judge of this City or their Officers which by Commandement are sent to bring any breaker of this Law and Custome to Ward or to distress or such like upon pain of Imprisonment of forty dayes and forfeiture of the double penalty for the offences assessing railing upon any Alderman or Mayor in his Office is Judgement of the Pillory Railing upon Mr. Chamberlain in his Office forty dayes Imprisonment beating threatning and railing of an Officer is Imprisonment after the Trespass is 32. Memorandum That every offence found in this City it is accustomed that the Officer a Freeman finding it which is called primus Inventor hath half the penalty by the grace of the Court. 33. Also every Freeman may find any offence but he hath no power to bring the party before any Judge of this City without an Officer except the party will come to his answer by free will 34. No man hath power to Arrest Attach or make distress of any Goods sorfeitable or offences except the Constable or Serjeant of the Mace 35. No Butcher or his Servant shall not use to drive any Oxe or Oxen atrot in the Streets but peaceably and if an Oxe happen to be let go when he is prepared to slaughter the Butcher shall forfeit two shillings besides recompence if any person be hurt thereby 36. No Butcher shall scald Hogs but in the common Scalding-House upon pain of six shillings eight pence 37. No Butcher shall sell any Measel Hog or unwholesome Flesh under pain of ten pounds 38. No Butcher shall sell any old stale Victual That is to say above the slaughter of three dayes in the Winter and two in the Summer under pain of ten pounds 39. None unreasonable Victual for all manner of Victuals 40. No Victualler of this City shall shall give any rude or unsetting Language or make any clamour upon any man or woman in the open Market for cheapning of Victual under pain of three shillings four pence 41. No Butcher shall cast the inwards of Beasts into the Streets Cleaves of Beasts Feet Bones Horns of Sheep or other such like under pain of two shillings 42. The Pudding-cart of the Shambles shall not go afore the hour of nine in the night or after the hour of five in the morning under pain of six shillings eight pence 43. No man shall cast any Urine-boles or Ordure-boles into the Streets by day or night afore the hour of nine in the night And also he shall hot cast it out but bring it down and lay it in the Channel under the pain of three shillings four pence And if he do cast it upon any persons head the party to have a lawful recompence if he have hurt thereby 44. No man shall hurt cut or destroy any Pipes Sesperals or Windvents pertaining to the Conduit under pain of Imprisonment and making satisfaction though he doth it out of the City if he may be taken within the City 45. No man within this City may make any Quill and break any Pipe of the Conduit coming through his house or nigh his ground under pain of the Pillory or take any water privily unto his house 46. Casting any corrupt thing appoysoning the water Lourgulary and Fellony 47. Whosoever destroy or perish any Cocks of the Conduit must have Imprisonment and make satisfaction Old Laws and Customes of this City 48. NO man shall set up Shop or occupy as a Freeman afore he be sworn in the Chamber of London and admitted by the Chamberlain under pain of 49. No man shall set over his Apprentice to any other person but by license of Master Chamberlain and there to be set over under pain of 50. No man which is a Forreign shall not buy nor sell within the Liberties of this City with any other Forreign under pain of forfeiture of the Goods so Forreign bought and sold 51. No Freeman shall be disobedient for to come at Master Chamberlains commandement to any summons to him given by any Officer of the Chamber under pain of Imprisonment 52. Master Chamberlain hath power to send a Freeman to Ward that he incontinently after send to the Lord Mayor the cause why that he is punished so that the Lord Mayor release him not but by the Chamberlains assent and if he be a great Commoner and disobeying to the Chamberlain Master Chamberlain may refer it to a Court of Aldermen Master Chamberlain hath Authority to send or command any