times used to have a Dispensation from the Archbishop and if the Incumbent in this Case should preach Heresie as the Attorney and Popham said the Ordinary might correct him for the parson is not exempted out of his Jurisdiction but his Parsonage onely but by Gawdy and the rest the Ordinary could not meddle with him for the Parson is priviledged in respect of the place but the Patron may commission and examine the matter and thereupon out and deprive him and so it happened in Coverts Case as Gawdy and Williams said wherein the Bishop of Winchester was the Donor of such a Donative 13 E. 4. LEe versus Lacon 3. Jac. In trespass the action was Land in the County of Salop and not guilty pleaded and the venire facias was made with a space for Salop but Salop was not named there And by vertue of that Writ the Sheriffe of Salop impannelled the Jury and found for the Plaintiff and the matter above specified was moved in Arrest of Judgment to wit that the venire facias was vicious and so a mistriall but by Fenner and Williams it was to be accounted his if no venire facias had been awarded And so indeed by the Statute of Jeofailes for the County to wit Salop is omitted and left out and so the Sheriffe of Salop had no power nor authority to summon the Jury because the Writ which is his Warrant is generall to the Sheriff and not naming of any County but the Court held it to be the best way to amend it and they put this difference For when the action is laid in Salop and upon a special pleading the issue is drawn into a forreign County there the entry and award of the venire upon the Will is speciall to wit to the Sheriff of that County where the issue arises to be tryed and in such case a venire facias with a blanâ—k shall not be good because it cannot be judged to which of the Sheriffs the venire was to be awarded and upon that incertainty it shall be naught but when the generall issue is taken or the matter is triable in the same County where the action is laid there the venire facias is awarded generally and must of necessity be intended to be the Sheriffe of that County where the action is laid and cannot be otherwise intended and for this reason it was but the default of the Clerk which is amendable and so it was amended BAylie versus Moon Trin. 3. Jacobi An action of Battery brought in Plymouth Court before the Major and Bailiffs there and not guilty pleaded but afterwards the issue was waived and Judgment was given for the Plaintiff and a Writ to enquire of damage was awarded to the Serjeant of the Mace that by the oath of twelve c. he should inquire and the Writ was made returnable at the next Court before the Maior and Baylifs And upon a Writ of Errour brought it appeared by the Record certified that the Writ to inquire of damages was taken before the Maior of Plymouth who was also Judg of the Court and for that cause reversed for the Writ warrants the inquiry to be before the Serjeant of the Mace who by the writ for that purpose is made a distinct Officer and so an inquiry before the Maior is not warranted by any writ And so by consequence a Judgment to recover those damages taxed before a wrong Officer to whom the Writ was not directed is erroneous which was granted by the whole Court LAxworth versus West Mich. 3. Jacobi Trespass brought for the taking of Hay severed from the ninth part of Elthorp in the County of Warwick the Defendant to part pleads not guilty and to the residue pleads a devise of the Parsonage made by Lepworth to the Defendant at Wapenbury in the same County and to inable the devise for tithes in L. alledges L. to be a Hamlet in Wapenbury to the intent that the whole Tithes may pass and upon a non devisavit the venn was of Wapenbury and found for the Plaintif that T. L. did not devise it and the other issue of not guilty found for the Defendant and moved in Arrest of Judgment that the venu was mistaken because it was of Wapenbury only and not of Elthorp and they of W. could not try a matter in E. And although it was answered that the Defendant himself by his plea had confessed that E. was but an Hamlet yet the Court held the venu mistaken for when the Plaintif declares of a Trespass in E. This by generall intendment is presumed to be a Village of which Village the matter which is there in question ought to be tryed and although the Defendant had alledged Elthorp to be but an Hamlet yet it was but to inable the devise and doth not extend to the issue before joyned upon the not guilty for part for in that issue both parties agree that Elthorp is a Village and it is a perfect issue taken which hath not any coherence with the other issue of non devisavit but if the Defendant had to the whole issue pleaded the devise as his excuse and had alledged E. to be an Hamlet of W. and that only been in issue there the venu awarded had been good of W. only but in this case it was adjudged that the venire was mis-awarded and that the Plaintif should have a venire facias de novo DElves versus Wyer Mich. 3. Jacobi The Plaintiff brought an action of Trespasse for breaking his Close and for cropping 200. Pear-trees and 100. Apple-trees and damage found to 40. l. And the Court was moved by Richardson for that the damages might be mitigated because he produced an Affidavit whereby it appeared that the party himself before the Action brought would have took 5 l. but denyed for the Court said that they could not diminish the damages in Trespass which was locall and therefore could not appear to them and the damages might well amount to 40 l. for cropping of an Orchard and so Judgment entred WOody's case Mich. 3. Jacobi Woody brought an action of false imprisonment and Battery against two who justifie and set forth that London is an ancient City and that the Maior of London is a Justice of Peace and that the Defendants were Serjeants of the Mace according to the custome of the City and that the Lord Maior to wit one Lee commanded them to arrest the Plaintif for causes to them unknown but to him known and to imprison him c. Walter moved that this Justification was insufficient because they only shewed that they were Serjeants at Mace duely elected according to the custome of the City but do not shew the Custome and Authority that they have to make Serjeants and to arrest as it is 4. H. 4. 36. in trespass the Defendant justifies that the Tower of London is within the City of London and time out of mind c. one Court was there used
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
Secondly 〈◊〉 one fidei consonum Thirdly consentaneum rationi Fourthly Pro communi utillitate regis civium comodum aliorum ibidem confluentium But all the question was upon the remedy for it was agreed that the custome shall be good But it was doubted by Foster and Danyell that there was no good returne for it was but as recyted and it was not averred and positively said that there was such a custome and to prove that the case of 28 H. 6. was cited where in debt upon an Obligation the Defendant demands Oyer and upon the view saith that it appeares by the said Obligation that two others were joyntly bound with him not named Judgement of the Writ and 24. Ed. 4. Where it was pleaded as it appeares by the Letters Patents of one King and in 11. H. 4. in returne of a Sheriff But Coke answered and took a difference between returne upon a Writ of priviledge and upon which no Issue may be joyned nor demurrer and that it is but for an Informer of the Court and other pleads And for this it seemes to him that it is good as to that and he conceived that by the Grant of the King the custome is destroied for the King by his Grant cannot add nor diminish any thing of the custome no more then of Prescription and exceptance of Grant shall be extinguishment of one as well as of the other as it appeares by 8. H. 4 25. H. 7. 5. 38. H. 8. B. Prescription 7 R 2. But to this the Lord Coke gave no answer and for that it seemes they were no Grants but confirmation rather of customes and they further denied that the customes are confirmed by the Statute of 7. R. 2. for this is only for the confirmation of Magna Charta and of all former Statutes and of Charta de Foresta and the liliberties of the holy Church and there is not any mention of the customes of London but to this the Lord Coke answered that they ought to credit their returne and for that it seemes that it is a private Act and they ought to adjudge of that as it is made as 7. H. 6. 6. And if it be false the party greived may have an Action upon the case so it was agreed that the custome that no forrainer shall hold any shop nor sell in any shop by retayl and that they may make By-Lawes for the ordering of their ancient customes are good customes without any confirmation by Act of Parliament or Grant of the King or otherwise And if any thing happen De novo that they can apponere remedium with the restrictions aforesaid for the Lord Coke saith that London is Antiqua civitas and was of great fame and reckoning amongst the most ancient Cities for it was said by Anianus Marcellinus which wrote 1200. yeares past that London was then Opidum vetustum and Cornelius Tacitus in vita Neronis saith that then there was under the Romans Government there was here Negotiorum copia commercia maximorum celebris and he well knew for he was here seven years and married the Daughter of Agricola who was ancient Guilda Mercatoria and for that it was well governed and continued in good Order for Vbi non est ordo ibi est infirmium sempiternus Horror confusio and Gilda is a Saxon word and is the same for Fraternitas and Northfolk and diverse other places in the Country the name continued but this is another sence for Gyld fignisies to pay and for that it is sometime demanded if a man inhabite in a place gildable or within Franchise and the Place gildable is subject to scot and Lot and all other charges but the Franchises are places exempt but no person which is of a Gyld or fraternity may be exempted not by the Grant of the King nor otherwise but shall be subject to all the charges of the Gyld and Fraternity and the King cannot make any man free of their Guyld when that is created for there are but three waies to make a man free of that First by Birth which is the most eldest Secondly by Service which is of merits Thirdly By redemption which is power which only remaines in the Maior and the Court of Aldermen in this case in London and such Gyld can never have beginning but by Grant but by prescription as the custome of Gavelkinde that a man may devise his Lands or that the Land shall discend to the youngest Son and that the King cannot make any stranger free of such Gyld or Fraternity appears in Rotulo patentium 32 Ed. 3. Where the King by his Letters patents granted to one Iohn Faulchon that he should be frank and free of the City of London and that he should keep an Apothecaries shop there but the Patentee could not have his Freedome by this grant and for that the King wrote his Letters to the Maior and Aldermen and requested them to make the sayd Faulchon free of the sayd City and upon that it was done accordingly but not upon the Grant and so it was adjudged in Darcies case 44. Eliz. Trinity that if the King grant to one the sole making of Cards in England and that none shall bring any Cards into England to be sold but the patentee and it was adjudged that though none may may have Park or Warren and such other matters of Pleasure without the Kings Grant and though that playing with Cardes be but a matter of Pleasure yet the making of them is a matter of profit and the bringing of them into England is a matter of Trade and the inhibition of that is hinderance of Trade and makes a Monopoly that the Grant was voyd and 3 Ed. 3. 3. Iohn of Sudfords Case where the Case was a Free-holder levied a fold upon his Soyl and Freehold of his own and the Defendant spoyled it and broke it aed upon that the Plaintif brings a Writ of Trespass the Defendant justifies that he was Lord of the Town and there had been a usage there and had been of time out of memory c. That no man of the same Town ought to levy a fold without the agreement and leave of the Lord And for that that the Plaintif had done it the Defendant pulled it down as wel to him it was lawfull and it seems a good custome and with this agrees 5 Ed. 3. Iohn de Hayes case and 10 and 11 Eliz. Dyer 279. 10. prescription by the Maior Sherif and Citizens of York Goods forraine bought and forrain sold shall be forfeited and that he may seise them it was adjuged a good prescription but the King by his Letters Patents cannot give such power to them And Coke was cleerly of opinion that the case was not within the Statute of 9 Ed. 3. chapt 2. 25 Ed. 3. 11 27 Ed. 3. 11. And it was agreed by them all that a Merchant or any other man may sell Goods in grosse as he may sell a hundred tun of
Port-reeve Jurates and Inhabitants of Gravesend brought Debt against one Edmonds a Water man which plyed the Ferry betwixt Gravesend and London and counts that Gravesend and Milton are ancient Townes and next adjoyning to the River of Thames and that the Inhabitants of these Townes have had time out of minde c. ancient passage from thence to London and have used to make By-Lawes and constitutions for the Government of that passage and have provided Water-men Steer-men and Rowers for the said Passage the which used time out of minde to take of every Passenger and his Fardell two pence and that for their maintenance and ought to hold the Passage if their benefit at this rate amounted to foure shillings or more and that the Queen Elizabeth by her Letters Patents under the great Seale of England incorporated the said Inhabitants by the name of Port-reevs Jurats and Inhabitants of Milton and Gravesend and this was in the tenth yeare of her Raigne and also that they injoyed the said Ferry without any Interruption and that they held the tide and Ferry and that the Port-Reeve Jurat and twelve of the Inhabitants had power to make By-Laws and Coustitutions for the government of the sayd Ferry and that every Water-man should observe his turn and also to impose Fines for the not observing of them and that in the thirty seventh yeare of the said Queene Elizabeth a Constitution was made by the then Port-reeve Jurats and twelve of the Inhabitants of the said Towns insomuch that many Water-men ply poore Passengers before that the Barge was furnished and so that many other Passengers were inforced to loose their passage by the Barge insomuch that the passage did not amount to four shillings so that they did not hold their tyde so that the Barge which had such preheminence that is that no Water-men shall ply any Faire or passenger till the Barge had received so many of their passengers by which they might receive four shillings at the Rate aforesaid and be removed from the Bridg at Gravesend unto the Land marke and that if the Tiltboate or any other Water-man received any passenger before that the Barge be so furnished that he should pay the sayd Port-reeve Jurats and Inhabitants for the maintainance of the said Barge for every passenger so received two pence and so assigned breach of the By-Law in the Defendants and that he had received so many of the passengers before the Barge was furnished which amounted to as much as is demanded by which Action accrued to the Plaintiff to demand it to which the Defendant pleads that he oweth nothing to the Plaintiffs in manner and forme as they have demanded it and by the Jury at the Barr it was found for the Plaintiffs and after that upon motion in the behalfe of the Defendant the Judgment was arrested and now at this day Judgement was prayed for the Plaintiffs By Dodridge Serjeant of the King and he conceived that the custome was good notwithstanding that it was alledged in the Inhabitants and he sayd it was no prescription but Custome and it is declared to be a good and laudable custome and usage by the Statute of 6 H. 8. Chapter 7. Rastall Passage 8. and he agreed that Inhabitants cannot prescribe to have matter of benefit but to have matter of Ease he conceived they might very well as it is 15 Ed. 4. 29. 22 H. 6. Prescription 46. 18 Ed. 4. 2. 18 H. 8. 1. Secondly As to the Objection that the living of the other Watermen which are not imployed in the Barge is by that abridged and that when the Water-man is willing to carry and the Passenger to be carried by him it is no reason that a By-Law should abridge this voluntary act of a man upon which his lively-hood depends he sayd that so it is not for nothing is challenged by the By-Law but only preheminence and that provision be made for the Poore which is for the publick good for every one may go with any that he will paying two pence to the Barge or after the Barge is furnished paying nothing and he conceived that the Liberty of the subject ought to be so abridged but not alltogether abolished as it is agreed in the Arch-Bishop of Yorkes Case in the Register in the Writ of Trespasse fol. 105. b. c. 8 Coke 125. a. Wagoners Case 8 Ed. 3. 37. a. 3 Ed. 3. 3. Where the Bishop of York claimes in the Mannor of Ripon such liberty that is that he and all his Predecessors time out of mind c. have had a custome that none in the said Town ought or had accustomed to use the office or mistry of a Dyer without Licence of the said Arch-Bishop or his Bayliff of the said Town And also he cited a case in the Register where the Abbot of Westminster prescribed to have a faire in Westminster upon Saint Edwards day and for ten daies after And that no Citizen nor other in London during that time should sell any thing in London but in this faire and after the Abbot remitted this priviledg and had of the Citizens of London for that one thousand five hundred pound And so it was adjudged in Sir George Farmers Case for a bake-house in Tossiter and that none shall bake any Bread to sell but in his bake-house and good And so he conceived that Custome may be restrained all passengers till the Bardge be furnished as in 2. Ed. 3. 7. Granâ— that all Ships laded and unladed in such a Haven shall be laded and unladed in such a place and a good grant notwithstanding that it restraines all people to a certaine and if this be good by grant then a Fortiore shall be good by custome and to the other objection that this custome shall only bind the Inhabitance and not strangers he conceived that custome might tye strangers that came into the said Town very well as it is agreed in 22. H. 7. 40. So the By-Law shall bind strangers when it is only for Acts to be made within the Town and for the publike good as it is agreed in the 44. Ed. 3. 13. and 8. Ed. 2. assis 413. ordinance against him which estops passage by water and good and so he agreed in the Chamberlaine of Londons Case that By-Law made in London shall bind all as well strangers as Citizens which sell any Drapery in the Hall there though that they Inhabit in any place out of the City And also he said that the Bardge-men which have the losse shall have the benefit for they shall have the two pence for every one that passes otherwise before that they are furnished and this is recompence for them which are tyed to perpetuall attendance and he conceiveth that the demand is very well made notwithstanding that the duty accrues from many times for he hath carried so many men at one time and so many at another the which in all amonnts to the sum demanded And so he
and for these reasons he prayed a consultation and Yelverton to the contrary and he took a difference and sayd that he agreed that if the Wardens of the Church have once possession of the Church there in Action of Trespas brought for these Goods one Warden cannot release but this tax for which they sue is a thing meerly in Action of which they have not any possession of that before and there he cannot sue alone and for that this release shall barr his Companion And the Court interrupted him and sayd that cleerly consultation shall be granted and Flemming cheife Justice we have not need to dispute this release whether it be good or not and there is a difference where a suit is commenced before us as if Wardens of the Church brought Trespasse here for Goods of the Church taken and one Release then we might dispute if this release were good or not but when the matter is original begun before them in the spirituall Court and there is the proper place to sue for this Tax and not any where else we have nothing to do with this Release and for that by the whole Court a consultation was awarded Hillary 7. Jacobi 1609. In the Kings Bench. Styles Case UPon a Motion made by Yelverton on the behalfe of one Styles the Case was this Styles had a Judgment in Ejectione firme and was put in possession by the Sheriff by an Habere facias possessionem and after the Defendant enters againe within the two weeks after Execution and the Writ was returned but not Fyled and Yelverton moved the Court for another Writ of execution and by Williams he could not have a new Writ of Execution but is put to his new Action and the Fyling of the Writ is not materiall for it is in the election of the Sheriff if he will Fyle or returne that or not but be sayd if the Execution had not been fully made as he sayd there was a Case where the Sheriff made an Execution of a House and there were some persons which hid themselves in the upper Lofts of the House and after the Sheriff was gone they came downe and outed those that the Sheriff had put in possession before and in this Case a new Writ of Execution was awarded but there a full Execution was not made and so the difference But the cheif Justice sayd That if the Sheriff put a man in possession and after the other which was put out enters in forthwith that in this Case the Court may award an Attachment against him for contempt against the Court. Hillary 7 Jacobi 1609. In the Kings Bench. Gittins against Cowper CUstome of one Mannor was That if any Copy-holder within the Mannor committed any Felony and this be presented by the Homage that the Lord may take and seise the Land a Copy-holder committed Felony and this was presented by the Homage and after the Copy-holder was Indicted and by Verdict acquit and the Lord entred and if his entry were lawfull or not was the question The points were two First If the Custome were good Secondly Admitting the Custome to be good if this Verdict and acquittall shall conclude the Lord of his entry And Walter of the Inner Temple argued that the Custome was good and that the Lord was not concluded by this Verdict And to the first point he sayd That it was a good Custome First insomuch it might have a reasonable beginning and for that he cyted the Book of 35 H. 6. where it is sayd that such Customes which might have reasonable beginning should be good and to that he cyted a Case which was adjudged as he sayd in 27 Eliz. and was one Delves Case and the Case was this A Quo warranto issued against Delves to know Quo warranto he held a Leet to which he pleaded that he was seised of such a Messuage and that he and all those whole Estate he hath in the said Messuage have used allwaies to have and hold a Leete there within the Messuage If this prescription that is to have a Leete appendant to a single Messuage was good or not was the question And it was adjudged insomuch that by resonable intendment it might be that this house was the Scite of a Mannor and the Lord granted that with the Leet the Prescription adjudged good and he sayd that many Customes are grounded upon the nature of the place and for that he sayd that this Mannor was adjoyning to great Woods and it might be that the Copy-holders committed Felonies and outrages and after fled into the Woods and there lived and yet injoyed the benefit of their Copy-holds and for that it was reasonable for the Lord to annex such a restraint and condition that is if they committed any Felony this should be a forfeiture of their Copy-hold and this should be a meanes to bridle them to commit such haynous and odious offences And that Customes ought to have a respect to the place he cyted the Case of 12 H. 3. where the Custome of the Isle of Man was That if any man stole a Hen or a Capon or such small matter that should be Felony but if he stole a Horse that should not be Felony for a man may privily convey away a Hen or might consume it but for the smalnesse of the place and being compassed with the water he could not so doe with a Horse So in 39. H. 6. That the married Wife of a Merchant in London may sue and be sued by the Custome and the reason is that London is the cheife City and place of Merchandise within the Realme of England and it is conceived that the Merchants cannot be alwaies resident there but sometimes beyond Sea or other where about their businesse and Affaires and for that it shall be reasonable that his Wife shall sue and shall be sued in his absence and in time of E. 1. Title Prescription the custome of Hallifax that if any Felon be taken with the manner he shal be forthwith beheaded and this was as it seems for the better suppressing the common Felonies there committed and so he concluded for this Reason that this custome might have such reasonable beginning and in respect of the place that should be a good custome His second Reason was that this might begin at this day lawfully Therfore this shall be good and for that he cited the case of 10 H. 7. 11. That if a man make a Feoffment upon condition that the Feoffee shall not commit Felony that this is a good condition but he sayd that he supposed that if the Feoffee commit Felony and the Feoffor enter into the Land and after the Feoffee is attaint of this felony that now the Lord shall enter by Escheate and his reason was that the Statute of Westminster 3. De quia emptores terrarum prohibits any man to make a Feoffment to the prejudice of the Lord to his Wardship or Escheat His third reason was that this
Chancellor and University of Oxford commanding them that they should remove the University to such a place till the Parliament should be ended And after he sent his Writ to them againe which was directed to the Chancellor and University by which he wild that they should returne againe the Parliament being ended by which Writ he conceived that it appeares that the University was not Locall And this for two reasons First insomuch that this Writ was directed to the Chancellor and University and every Writ is directed to a person and not to a place Secondly the Writ that he should move and remove the University which is a thing impossible to do if it should be a place The other Record was 49. Ed. 3. And this declares that there was contention between the Schollers of Cambridge and the Townesmen there and the Schollers went to Northampton and there they made a Petition to the King that they might erect a University and the King sent his Writ to the Maior commanding him that he would not suffer the Schollers to remaine there and that he would there erect a University which proves that a University may be erected at the Kings pleasure and so cannot a place then admitting that a Corporation may consist upon a place yet the University not being a place that shall not be any prejudice to omit it And he cited a case which was adjudged as he said in the 26. of Eliz. which was thus The Deane and Canons of Winsor made a Lease for years by the name of Deane and Canons of new Winsor And this was adjudged no variance and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there and he said the Lord Norths Case was thus That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Oxford and adjudged a good Feoffment And he said that in the argument of this case it was said by Gaudy that if a corporation were made of Dale and after Dale is made into a City they may make a Lease by the name of a City of Dale and the Lord Popham as he said put these cases That is that if a Corporation be founded of Oxford And that they made a Lease by the name of c. In the Precincts of Oxford this shall be a good Lease yet a thing may be within the Precincts of another place and not in the place and in the 32. Eliz. was the case of one Jermin and Wylles that if a Corporation be made by the name of Deane and Chapter of Saint Maries in Exceter is good But they agreed in this case as he said that if it appeare that they cannot be intended allone otherwise it should be and he conceived in the principall case that it is not necessarily that it should be intended the same place and for that he conceived in all those cases that the Lease shall be good and he said that there were neer two hundred Leases upon the same Title for which c. And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices And the opinion of Crook and Williams Justices was that the Lease was good But Fenner and Yelverton to the contrary and Flemming cheif Justice argued that the Lease was not good but he said this should not be absolutely his opinion but moved a composition betwixt the parties But insomuch that the matter was not compounded in the same Michaelmasse Tearme Judgement was praied And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case And upon the decree appeares that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to by a Devise made to them by the name of Masters Fellows and Schollers of Trinity Colledge in Cambridge and this Devise was made four and five of Phil. and Mary and the Decree recyted that upon this were two great Doubts and Questions conceived First If this Devise were good and also by the Statute of 1. and 2. Phil. and Mary which inabled to devise to spirituall Corporations And the second point was That where they were incorporated by the name of Master Fellows and Schollars De sancta and Individua Trinitate in the University and Town of Cambridge if this devise made to them by the name of Master Fellowes and Schollers of Trinity Colledge in Cambridge was good and the Decree rehearsed that the opinion of all the Justices in England was First That it was a good Devise within the Statute of one and two Phillip and Mary as it is reported in the Booke before cited Secondly That this was not such a mis-naming of the Corporation which made the Devise voyd and Williams Justice produced this Record as he sayd to fortify his opinion And he conceived no difference between a Grant and a Devise nor no difference when an Estate or conveyance made unto them and conveiance made by them and for that he cited the Case in the 19 H. 8. in Dyer where if a man devise Land to the Abbey of Saint Peters where the foundation is Saint Paul this is a voyd devise and so in a grant And Crooke Justice to the same Intent Yelverton Justice to that Decree shewed by my Brother Williams I conceive a great Difference First a Will and a grant for in case of a Will it sufficeth if they be described by a name by which the Intent of the Devisor may be sufficiently known and a man is intended to be Inops consilij at the time of the Devise made and for that that he hath not any to instruct him oâ— the precise name of the Corporation for which c. And Fenner Justice to the same intent and if a man devise to one and his Assignes as it is a Fee-simple in case of a Devise so it is not in grant and so devise to one and his Children is an Estate Tayl in case of Devise but not in a grant Flemming cheife Justice to the same intent and to the Decree he sayd that this is as good Law as ever he heard in his life but yet he conceived also that there is a great difference between a Grant and a Devise as if a man devise to a Monke the Remainder over this is a good remainder so devise to one the Remainder over and the particular Tenant refuse this is good in a Devise contrary in grant and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer there is a great difference where there is not any such person at all to take there the Devise shall be void as where the Devise to the Abbot of Saint Peter where
lawfull for the Inne-Keeper as to the Person of his Guest ought to receive him and he is compellable to do it as it is 5 Ed. 4. 2. and 22 Ed. 4. And for his Goods he ought to keep them safe and of the other part the Guest ought to pay the Inne-Keeper as well for the meat of his Horse as for his own as it is 28 H. 6. And it should be inconvenient that he should be put to his Action for c. And for preventing this mischeife the Inne-keeper may detaine the Horse of his Guest till he be satisfied and it seems to Coke cheife Justice that an Inne-Keeper is not chargeable with the Goods of any which is not lodged in the Inne and the Goods must be lost by default of the Inne-Keeper and that the Inne-Keeper is not compellable to receive the Horse of any if the Master be not lodged and if a Neighbour of the Inne-Keeper come to the Inne-Keeper he shall not answer for the Goods for he is not lodged but as a Tipler and so if an Inn-Keeper invite any to his House Ad Praudendum aut Caenandum the Inne-Keeper shall not be charged as it 35 H. 8. For it was agreed that the Guest ought to averr that he was lodged in the Inne And Foster Justice sayd that it was adjudged in the case of one Perin of the Black Swan in Holborne that by the custome of London an Inne-Keeper may sell a Horse which remaines with him to be Kept and hath eaten more then he is Worth and so it was sayd by Foster that where a Haberdasher of London came to an Inne and there sold divers Hats and after went to a Faire and left divers other Hats in the Inne the which in his absence were stollen and the Inne-Keeper should not answer for them for that that the Haberdasher was not lodged in the Inne at that time and this was the Case of one Coley in the 25. of Eliz. But Sir Edwin Sands lodged in an Inne and there left a Trunck and went to meet the Kiug the Trunck remaining in the Inne in his absence it was stollen and the Inne-Keeper was charged Quere the Difference if the Owner desire that his horse should go to grass the Inn-Keeper shall not answer but if an Inn-Keeper receive the horse and of his own head puts the horse to grass and he is stoln there the Inn Keeper shall be charged and though the Inne-Keeper deliver the Key of the Chamber to the Guest yet the Inne-Keeper shall answer for the goods which are stollen for it is an implyed promise of every part that is of the part of the Inne-Keeper that he will preserve the Goods of his Guest and of the part of the Guest that he will pay all duties and charges which he caused in the house and that the Inne-Keeper may retain without custome by the Common Law the Horse of the Guest as a pledge till he be satisfied of all dues and so a Tayler and Goods taken in Withernam But the Inne-Keeper cannot work the horse of his Guest in such a case nor sell his Goods though that they be Bona peritura Trinity 7. Jacobi 1609. In the Common Bench. Colledge of Phisitians Case THOMAS Bonham brought an Action of false Imprisonment against Doctor Alkins and divers other Doctors of Phisicke The Defendants justified that King H. 8. Anno Decimo of his Reigne founded a Colledge of Phisitians and pleaded the Letters Patents of their Corporation And that they have Authority by that to chose a President c. as by the Letters Patents c. and then pleads the Statute of 32 H. 8. chapt 40. And that the said Doctor Alkins was chosen President according to the said Act and Letters Patents and where by the said Act and Letters Patents it is provided that none shall practise in the City of London or the Suburbs of that or within seven miles of the said City or exercise the faculty of Phisicke if he be not to that admitted by the Letters of the President and Colledge sealed with their common Seale under the penalty of a hundred shillings for every Month that he not being admitted shall exercise the said faculty further we wiland grant for us and our Successors that by the President and Colledge of the Society for the time being and for their Successors for ever that they may chose foure every yeare that shall have the overseeing and searching correcting and governing of all in the said City being Phisitians using the faculty of Medecines in the said City and other Phisitians abroad whatsoever using the falculty of Phisicking by any meanes frequenting and using within the City or Suburbs thereof or within seven miles in compasse of the said City and of punishing them for the said offences in not well executing making and using that And that the punishment of those Phisitians using the said faculty so in the premisses offending by Fines Amercements Imprisonments of their Bodies and by other reasonable and fitting waies shall be executed Note the preamble of these Letters Patents is Quod cum Egregij officij nostri munus arbitremur ditionis nostrae Hominum selicitati omni ratione Consulere Id autem vel inprimis fore si improborum conaminibus tempestave occurramus apprime necessarium fore duximus improborum quoqur hominum qui medicinam Magis avaritiae snae causa quam ullius bonae conscientiae fiducia profitabuntur undi Rudi et credulae plebi plurima incommoda oriuntur audaciam compescere And that the Plaintiff practised in London without admission of the Colledge and being Summoned to appeare at the Colledge and examined if he would give satisfaction to the Colledge according to the said Letters Patents and Statute he answered that he had received his decree to be Doctor of Phiâ—ck by the University of Cambridge and was allowed by the University to practise and confest that he had practised within the said City and as he conceived it was lawfull for him to practise there that upon that the said President and Commonalty fined him to a hundred shillings and for not paying of that and his other contempt committed him to Prison to which the Plaintiff replied as aforesaid and upon this demurrer was joyned And Harris for the Defendant saith that this hath been at another time adjudged in the Kings Bench where the said Colledge imposed a Fine of five pound upon a Doctor of Phisick which practised in London without their admission and for the non payment of that brought an Action of Debt and adjudged that it lay well and that the Statute of 32. H. 8. extends as well to Graduats as to others for it is generall and Gradiots are not excepted in the Statute nor in the Letters Patents and all the mischeifes intended to be redressed by this are not expressed in that and the Statute shall not be intended to punish Imposters only but all other which practise without examination and
admittance for two things are necessary to Phisitians that is learning and experience and upon that there is the proverb Experto credo Roberto And the Statute intends that none shall practise here but those which are most learned and expert more then ordinary And for that the Statute provides that none shall practise here without allowance and examination by the Bishop of London and the Deane of Pauls and four learned Doctors But in other places the examination is referred only to the Bishop of the Diocesse and the reason of the difference is for that that London is the hart of the Kingdome And here the King and his Court the Magistrates and Judges of the Law and other Magistrates are resident and with this agreed the government of other well governed Cities in Italy and other Nations as it appeares by the preamble of the said Letters Patents and it appeares by the Statute that this was not intended to extend to Imposters only for that that the word Imposter is not mentioned in the Statute And the Statute provides that they shall be punished as well for doing and using as for ill using And also it is provided that the Statute of 1. Marie 1. Parliament chap. 9. That the Gardians Goalers or Keepers of the Wardes Goales and Prisons within the City and precinct of that shall receive into his Prison all such person and persons so offending which are sent or committed to them and those safely shall keep without Bayl till the party so committed shall be discharged by the said President or other person by the said Colledge to that authorised by which it appeares that the Goalers Keepers of Prisons have power to retain such which are committed That then the President shall have power to commit for things Implyed are as strong as things Expressed as it appeares by the Com. Stradlinge and Morgans Case And also in the Earle of Leicesters Case where it is agreed that Joynture before Coverture cannot be waved and this is implyed within the Statute of 27. H. 8. And so the Statute of 2. Ed. 6. Provides that after seven yeares Tythes shall be payd by which it is Collected by Implycation that during seven yeares Tythes shall not be payd and so he prayed Judgement for the Defendants Dodridge Serjeant of the King for the Plaintiff said that the Statute of 24 H. 8. chap. 5. and the Letters Patents gives power to four Censors to punish for ill executing doing and using the faculty of a Phisitian and the Plaintiff was not charged for ill executing of it doing or using But it is averred where Revera the Plaintiff was nothing sufficient to exercise the said Art and being examined lesse apt to answer and thereupon they forbade him and being sent for and not appearing was amerced five pound and order that he should be Arrested and being Arrested upon his appearance being examined if he would submit himselfe to the said Colledge he answered and confessed that he had practised within the said City being a Doctor of physick as aforesaid as wel to him it was lawfull and that he would practise here againe for which he was committed to Prison So that he was amerced for his contempt in the using of the said Art and committed to Prison for his answer upon his examination And he conceived that there are two questions considerable First if the Colledge may restraine a Doctor of phisick of his practise in London Secondly admitting that they may then if these are the causes for which they may commit by their Letters Patents the first reason is drawn from the Letters Patents and the said Statutes in which he said that the intent of the King was the end of his work And this intent shall be expounded for three reasons apparent in the words contained in the Grant First Intempestive Conatibus occurrere Secondly Improborum Hominum qui medicinam Magis avaritiae suae causa quam ullius bonae Conscientiae fiducia profitebantur audaciam Compescere Thirdly which would invite learned men to practise here and for that would quod Collegium prefectum Doctorum et graviorum virorum qui medicinarent in urbe nostra Londino et suburbibus infra septem millia passium in urbe quaqâ—â— versus publice Exerceant institui volumus et imparamus And further he said that there are three sorts of men which meddle with the Body of a man First is the learned man which reades all Bookes extant and his knowledge is speculative and by that he knew the nature of all simples And the second is practive the knowledge of which is only his experience he may give Probatum est But the ignorance of the cause of the disease and the nature of the things which he applies for the cure of that And the third is an Imposter which takes upon him the knowledg which he hath not and every of them the Colledge may punish for Male utenda faciendo vel exequendo by what way they will And this was not the first care which was had for in the 9. H. 5. was a private Act made for Phisitians by which there is great regard to them which are learned and educated in the University And for that the Act provides that they shall not be prejudicall to any of the Universities of Oxford and Cambridge and with this agrees 3. H. 8. 11. and the priviledges of them and the Docti et graves homines mentioned in the Letters Patents are the learned men mentioned in the Act for the Statute provides that they shall punish according to these Statutes and late edicts And by the former Lawes the Universities that their priviledges were excepted and by their former Statutes the Letters Patents ought to be directed for it is referred to them Also the Statutes of this Realme have alwaies had great respect to the Gradiats of the Universities and it is not without cause for Sudavit et Alsit and hath no other reward but this degree which is Doctor and for that the Statute of 21 H. 8. prefers Graduates and provides that Doctors of Divinity or Batchelors shall be capable of two Benefices with Cure without dispensation And so 13. Eliz. provides that none shall be presented to a Benefice above the value of thirty pound per annum if he be not a Doctor or Bachelor of Divinity And to the objection that none shall practise in London or seven miles circute of it without licence that this clause shall be expounded according to the matter and to that he agreed for the other branches of the Statute are made to cherish grave and learned men and for that it shall not be intended that this branch was made for the punishment of those but of others which the Statute intended to punish And to the second objection that every Doctor is not the learned and grave man intended within the Statute for the knowledge of many of them is only speculative without practise to that he answered that