words of the Decree wherefore the Party Leassee having expressed himself that this twenty five pounds by the year shall be paid in name of a Fine and Income And the Decree it self shewing that by reason of a Fine or Income less rent is reserved it may not be said that this twenty five pounds by the year shall be a rent within the meaning of the Decree when there is a rent of five pounds also reseserved beside this Income Secondly this Decree made in 37. H. 8. being penal unto the Citizens of London because it inflicteth imprisonment upon him upon his non-payment of his Tythe according to the rent reserved and being also in advantage of the Ministers of London because by vertue of this Decree the Minister is to have according to the rate of 2. sh 9. d. in every twenty shillings where anciently he had but 2. s. 6. d. it is no reason to extend it by equity and to construe that to be a rent within the intent and meaning of the Decree which of it self is a Fne or Income Thirdly there never hauing been above the rent of five pounds by the year reserved upon any Lease made it cannot be taken to be any covin or collusion When the ancient rent is reserved insomuch that now so much as the Law requireth is done and besides where the Common Law or Statute Law shall take notice of a Fraud it ought to be in case where the thing in which the Fraud or deceit was supposed is formerly in being for a Fraud may not be committed to a person or thing not in being Fourthly it is to be reserved so that if no rent at all had been reserved there might not any more have been demanded but only according to the rate of the rent which was last reserved for the houses wherefore the ancient rent of 5. l. being here reserved it cannot be that within the intent and meaning of the Decree there can be more rate-Tythes demanded then according to that rent And besides the very words of the Decree intimates that there is no fraud within the meaning of the Decree but only where by reason of the Fine or Income there is not rent at all reserved or a less rent then was anciently reserved wheresore in the Case at the Barre the old rent being reserved there may be no fraud at all As to the sixth and last part which is who shall be Judge of the payment of Tythes for houses in London and the remedy for the recovery of them It is apparent out of the words of the Decree that the Mayor of the City of London is Judge and is to give order concerning them and Suit is not to be made in the Ecclesiastical Court for them and if it be a Prohibition is to be granted insomuch that the party grieved resorteth unto another Judge then the Statute hath appointed But if the Mayor do not give aid within two moneths after complaint made or do not give such aid as is fitting then resort is to be made unto the Lord Chancellour of England who hath three moneths given him for ending of the said Cause Whereunto is annexed divers ANCIENT Customs AND USAGES Of the said City of LONDON Newly Re-printed LONDON Printed for Abel Roper at the Sun against St. Dunstans Church in Fleet-street 1670. DIVERS ANCIENT CUSTOMS AND USAGES OF THE City of LONDON IN Plato Ferre in Hustings London viz. That all the Lands Tenements and Hereditaments Rents and Services within the City of London and the Suburbs of the same are pleadable in the Guild-Hall within the said City in two Hust of which one Hust is called Hust of a Plea of Land and the other Hust is called Hust of Common Pleas and the said Hustings are kept in the Guild-Hall before the Mayor Sheriffs and other of the said City every week upon Munday and Tuesday that is to say Munday to enter demands and to award Non-Suits and allow Essovnes and on Tuesday to award defaults and to plead saving at certain times and Festival dayes and other reasonable causes on which times no Hust may be kept by Custome of the said City Nota quod Hust of Pleas of Land must be kept one week apart by it self and the Hustings of Common Pleas one week by it self at the said days yet the Inrolements of the said Hust make mention only of Munday Hust of Pleas of Land IN Hust of a Plea of Land are pleaded Writs of Right Patent directed to the Sheriffs of London in which Writs there are such process by custome of the said City viz. The Tenant or Tenants at the first shall have three Summons to the Tenants delivered at three Hust of Plea of Land next following after the livery of the Writ not demanding the Tenants at any the Hust aforesaid And after the three Summons ended three Essoynes and other three Hust of Plea of Land then next following and at the next Hust after that three Essoyns if the Tenants make default Process shall be made against them by Grand Cape or Petit Cape after appearance and other Process as at the Common Law And if the Tenants appear the Demandants shall declare against the Tenants in nature of what Writ they will except certain Writs which are pleadable in the Hust of Common Pleas as shall hereafter be shewed without making protestation to sue in nature of any Writ and the Tenants shall have the view and shall be Essoyned after the view at the Common Law And shall also have the Tenants Essoyned after any appearance by the custome of the City And although one such Writ be abated after view by exception of Joyntenants or other exception dilatory and although the same Writ be restored the Tenants by the custome of the said City shall have the view in the second Writ notwithstanding the first view had And if the parties plead to Judgement the Judgement shall be given by the mouth of the Recordeâ— and six Aldermen had wont to be present at the least at every such Judgement given and every Beadle by advise of his Aldâ—â—man against every Hust of Pleas of Land shall cause to be summoned twelve men being Freeholders of the best and most sufficient of his Waâ—d to come to the Guild Hall to pass an Enquest if need be if there be so many men of heritage within the same Ward And if the parties pleading come to an Enquest then shall the Enquest be taken of landed men being Freeholders of the same Ward where the tenements are and of other three Wards nearest adjoyning to the place where the Terants are so that four men of the same Ward where the Tenants are shall be swoâ—n in the same Enquest if there be to mary And no damages by the custome of the City are recoverable in any such Writ of â—ight Patent And the â—â—quesâ— may pass the same day by such common summons of the Beadle if the parties be at Issue and the Juiors do
come otherwise Process shall be 〈…〉 the Jury to come at the next Hust oâ— Pleas of â—ard by precept directed from the Major to the Sheriffs and the Sheriffs shall be ministers by commandement of the Major to serve the Writs and do the execution of the same albeit the original be directed to the Major and Sheriffs in common and you shall understand that as well the Tenants as Demandants may appoint their Attorneys in such Pleas. And if the Demandants plead against the Tenants in the nature of a Writ of Right and he parties come to a Jury upon the meer Right then shall the Jury be taken of twenty four in the nature of a grand Assize as alwayes the custome requireth that six of the Ward be of the Jury of twenty four And the Tenants in all such Writs may vouch to warrant within the said City and also in Forreign County if the Vouchers be not Tenants within the same City And if the Tenants in such Writs vouch to warrant in Forreign County In this Case Process cannot be made against the Voucher by the Law of the City Then shall the Record be brought before the Justices of the Common Pleas at the suit of the Demandant and then Process shall be made against the Vouchee And when the Voucher shall be ended in the same Court then all the Parol shall be sent back again into the Hust to proceed further in the Plea according to the custome of the City and certain Statutes And also if the Tenants in such Writ plead in Bar by release bearing date in Forreign County or Forreign matter be pleaded that it cannot be tryed within the City then the Defendant shall cause the Process to come into the Kings Court to try the matter there where it is alleadged as the matter is there found the proceeding shall be sent back again into the Hustings to proceed further therein as the Case requireth And all that time the Suit shall cease in the Hust as hath been heretofore And also it hath been heretofore accustomed that a man may say in Hastings of Pleas of Land to have execution of Judgement given in Hust in nature of Scirefacias without Writ And you must note that any such Summons made to the Tenants in a Writ of right Patent is made two or three days before such Hust or the Sunday next before the same Hust If Erroneous Judgement be given in the Hustings of London before the Major and Sheriffs it shall be reserved by Commission out of the Chancery directed to certain persons to examine the Record and Process If Erroneous Judgement be given before the Sheriffs in London the Defendant may sue a Writ of Error before the Mayor and Sheriffs in the Hustings Hustings of Common Pleas IN Hust of Common Pleas are pleadable Writs called Ex gravi querala to have execution of the Tenants out of Testaments which are enrolled of Record in the Hust Writs of Dower unde nihil habet Writs of Gavelets of Customes and Services instead of Cessavit Writs of Error of judgment given before the Sheriffs Writs of Waste Writs of Participatione faciend among partners Writs of Quid juris clamat per quae servitia and other the Writs which are closed directed to the Mayor and Sheriffs and also Replegiaries of for goods and distresses wrongfully taken These are pleadable before the Mayor and Sheriffs in these Hust of Common Pleas by plaint without Writ And not as before that the Sheriffs are Ministers to do the office of ferving these Writs and Replegiaries by the Majors Preceps directed to the same Sheriffs And the Process is thus FIrst in the Writ of Ex gravi querela warning before hand shall be given to the Tenants two or three dayes before the Hust or the Sunday be oâ—e as in Plea of Land And so shall be done of all other Summons touching the same Hust And if warning be given and testified by the Sheriffs or his Ministers the Tenants may not be essoyned and if the Tenants make default at the same warning testified then the Grand Cape shall be awarded And if they appear they may be essoyned at the view And hereupon all other Process are made plainly as is said in a Writ of Droit Patent in the Hust in a Plea of Land In a Writ of Dower unde nihil habet the Tenants shall have at the beginning three Summons and one Essoyn after the three Summons and after these shall have the view one Essoyn and the Tenant in such Writ of Dower shall have the view although they enter by the husband himself demanding the same albeit he died seized and also the Tenants may vouch to warranty and after be essoynâ—d after every appearance and all other Process shall be made as in a Writ of right in the Hust of Pleas of Land aforesaid And it the Demandant recover Dower against the Tenant by default â—o by judgement in Law in such Writ or Dower And the same wife of the Demandâ—nt alledgeth in Court of Record that her husband died seized Then the Major shall command â—he Sheriffs by Precept that they cause a Jury of the viâ—inity where the Tenants lâ—e against the next Hust of Common Pleas to enquire if the husband died seized and of the value of the â—enements and of the damages and 〈◊〉 recover by verdict the damages shall be enquiâ—ed by the same Jâ—y In a Writ of Gaviâ—et the Tenâ—nts shall have three 〈◊〉 and three Essoynes and they also shall have thaâ— view they may vouch to 〈…〉 and Forreign And they shall be essoyned and shall have other exceptions and all other Process shall be made as in a Writ of Right c. But if the Tenant make default after default then the Defendant shall have Judgement to recover and hold for a year and a day upon this condition that the Tenant may come within the same year and a day then next following and make agreement for the Arrearages and find Surety as the Court shall award to pay the rent or the services faithfully from thenceforth and shall have again his Tenements and within the same year and day the Tenant may come in Court by Scire fac and shall have again his Tenements doing as aforesaid and if the Tenant come not within the year and the day as is aforesaid then after the year and the day the Defendant shall have a Scire fac against the Tenant to come and answer whether he can say any thing why the Defendant ought not to recover the Tenements quite and clearly to him and his Heirs for ever and if the Tenant come not to shew what he can say then Judgement shall be given that the Defendant shall quite recover the Land for ever according to the Judgement called Shartford by custome of the same City In a Writ of waste process shall be made against the Tenants by Summons Attachment and distress according to the Statute in that behalf made
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
Actions personal whatsoever by Bill as well among Merchants and Merchants for Merchandize as also between others that will plead by Process made against the parties Item the Mayor and Aldermen or the Mayor and Chamberlain of the said City take before them in the said Chamber Recognizances of Debt of those that will of what summes soever And if the day of payment be missed then he to whom the Recognizance is made out of this Record shall have execution of all the Debtors Goods and of the moyety of his Lands within the said City and it is taken as at the Common Lawes Item Pleas of Debt according to the Ordinance called the Suit of Smithfield are determinable only before the Mayor and Aldermen according as is more plainly set down in the Ordinance thereupon made Item the Assizes of Nusance are determinable by plaint before the Mayor and Aldermen and that plaint shall be served by the Sheriff the Wednesday against the Friday and then the Mayor and Aldermen ought to proceed in Plea according to that which is set down in the Act of Assize and Nusance in the said City Item the Mayor and Aldermen have alwayes used to set down penal Acts upon Victuals and for other governance of the City and of the peace according to their discretion and advice and proclaim the same Ordinance within the said City openâ—y to be kept in the Kings name and of the City upon that penalty set down and shall levie all those penalties of those which do contrary to the Ordinance aforesaid Item the Mayor and Aldermen have alwayes used and may by custome of the same City cause to come before them the offenders which are taken within the said City for Lies and false Nuses noised abroad in disturbance of the Peace Makers and Counterfeiters of false Seales and false Evidences and for other notorious deceits known to them which they shall find faulty of such malefactours by confession of the parties or by enquest and then take them and punish them by the Pillory or other chastisement by imprisonment according to their discretion Item the Mayor and Aldermen have alwayes accustomed and may by custome of the said City change Process abbridge delayes in actions personal as well before themselves as in the Sheriffs Courts and to make new Ordinances touching personal Pleas which Ordinances they understand to be reasonable and profitable for the people Item you must note that all the City of London is held of our Soveraign Lord the King in Free Burgage without the same City and of all the Lands and Tenements Rents and Services within the same City and the Suburbs of the same are well in Reversion as in Demesne are devisable by Usage of the said City so that men and women by Usage of the same City may devise their Tenements Rents and Reversions within the said City and Suburbs of the same to those whom they will and of what Estate they will and they may also devise new rent to be taken of the same their Tenants in such sort as best shall seem unto them by their Testament and by their last Will and those which are Freemen of the same City may devise their Tenements to Mortmain as appeareth by the Kings Charter to that effect made Item He which holdeth Tenements joyntly with others may devise that which belongeth to him without any other separation but Infants within age can make no devise nor woman under covert barn cannnot devise their Tenements by leave of their Husbands nor in any other sort during the coverture 49. 7. 325. per. Cur. Also the Husband cannot devise Tenements to his Wife for any higher Estate then for term of life of his Wife neither can the Wife claim any further Estate upon pain of losing the whole neither can the Husband devise the Tenements in the right of his Wife nor the Tenements which the wife and the husband have joyntly purchased but if the Husband and Wife have Tenements joyntly to them and the Heirs of the Husband the same Husband may devise the Reversion and all the Testaments by which any Tenements are divised may be inrolled in the Hust of Record at the suit of any which may take advantage by the same Testaments and the Testaments which are so to be inrolled shall be brought or caused to be shewn before the Mayor and Aldermen in full Hust and there the said Will shall be proclaimed by the Serjeant and then proved by two honest men well known which shall be sworn and examined severally of all the circumstances of the said Will and of the Estate of the Testator and of his Seal and if the proofs be found good and true and agreeing then shall the same Will be inrolled upon Record in the same Hust and the Fee shall be paid for the Inrolment and no Testament nuncupative nor other Testament may be inrolled of Recod unless the Seal of the party be at the same Will but Wills that may be found good and true are effectual albeit they are not inrolled of Record Item Testaments within the said City ought by custome of the same City to be adjudged effectual and Executors have respect to the Wills of the Testators albeit the words of such Wills be defective or not accordidg to the Common Law Item Where Reversions or Rents be devised by Will inrolled in the Hust of Record the same Reversions and Rents after the death of the Testator are so Executed that those to whom such rents are devised may distrain for the rent and make avowry and those in reversion may sue a Writ of Waste at their will without any Attornment of the Tenants and may plead by the same Inrolment if need be although they have not the same Testament and the same custome taketh place for Deeds of Land inrolled in the Hust of Record and such Inrolments have been alwayes used so that the Wills are proclaimed and proved in full Hust as is aforesaid and Deeds indented and other Writings sealed may be accepted and the knowledging and confession of women may be received before the Mayor and one Alderman or before the Recorder and one Alderman or before two Aldermen for need as well out of the Court as in so that the same Charters Indentures and other writings so acknowledged be afterwards entred and inrolled in any Hust and the Fees paid as the Order is Item where a man hath devised by his Will enrolled certain rent to be taken of his Tenants within the said City without a cause of distress yet by custome of the said City he to whom the devise is made may distrein and avow the taking for the rent behind and in the same sort it shall be done for Amerciaments Rents called quit-rents within the said City Item the Mayor and Aldermen which are for the time being by custome of the same City shall have the Wards and marrying of all the Orphans of the said City after the death of their