Ancestours although the same Ancestors held elsewhere out of the City of any other Lordship by what service soever and the same Mayor and Aldermen ought to enquire of all the Lands Tenements Goods and Chattels within the same City pertaining to such Orphans and the Lands Tenements Goods and Chartells within the same City pertaining to such Orphans to seize and safely keep to the use and profit of such Orphans or otherwise to commit the same Orphans together with their Lands Tenements Goods and Chatels to other their friends upon sufficient Surety of Record in the Chamber of the Guild-Hall in convenient sort to maintain the same Orphans during their minority and to repair their Lands and Tenements and safely to keep their Goods and Chattels and to give good and true accompt before the said Mayor and Aldermen of all the profits of the same Infants wen they come to age or be put to a trade or married at the advice of the said Mayor and Aldermen and that in all cases if it be not otherwise ordained and disposed for the same Orphans and their Lands Tenements Goods and Chattels by express words contained in the same Wills of their Ancestors and no such Orphans may be married without consent of the said Mayor and Aldermen And in like sort where Lands Tenements Goods or Chattles within the same City are devised to a Child within age of a Citizen of the same City his Father living and the same Child be no Orphan yet by custome of the same City the said Lands Tenements Goods and Chattels shall be in the custody of the Mayor and Aldermen as well as of an Orphan to maintain and keep the said Lands Tenements c. to the use and profit of the said Infant and shall give good and true accompt for the same as is aforesaid And note that where a Citizen of the same City hath a wife and children and dieth all debts paid this Goods shall be divided into three parts whereof the one part shall come to the dead to be distributed for his Almes the other part shall come to his wife and the third part to his children to be equally parted amongst them notwithstanding any device made to the contrary and for the same the wife or children or any of them may have their recovery and suit to demand such Goods and Chartels against the Executors or Occupiers of the same Goods and Chattels before the same Mayor and Aldermen by plaint Item by ancient custome of the said City it was not lawful to any Stranger or Forreigner to sell Victuals or other Merchandizes to any other Stranger or Forreigner within the same City to self again nor to any such Forreigner or Stranger to sell Victuals or any other Merchandize within the said City by retail Item by ancient custome of the said City of London the Citizens and Ministers of the same City are not to obey any Commandment or Seals except the Commandment and Seal of our Sovereign Lord the King immediate neither can any of the Kings Officers make any Seisure or Execution within the said City nor within the Franchises of the same by Land nor by Water except only the Officers of the City aforesaid Item touching the Judgements given in the Sheriffs Court in Actions personal or in Assizes taken before the Sheriffs and Coroners by custome of the said City the parties against whom such Judgements are given may sue a writ of Errour directed to the May or Aldermen and Sheriffs to reverse the said Judgements in the Hust and if the Judgements be found good yea though the same Judgements be affirmed in the Hust yet the same party may sue another writ of Error directed to the Mayor and Sheriffs to cause the Record to come before the Justices assigned at Saint Martins le Grand as hath been heretofore done But if any party by such Judgemenn given before the said Sheriffs be convict in Debt or Damages and is therefore committed to Prison until he hath made agreement with the party and afterwards pursueth a Writ of Error to reverse the Judgement in the Hust where although the Judgement be affirmed and the same party will sue a-another Writ of Error to reverse the same Judgement before the Justices assigned at Saint Martins as is aforesaid yet nevertheless the same which is so in person must not be delivered out of Prison by ancient custom of the same City by means of any such Writ of Error until he have found sufficient Sureties within the said City or laid in the money into the Court to pay him that recovered the same if in case that the Judgement be afterwards affirmed And in case that such Writ of Errour be sued to reverse any Judgement given in the Hust before the Justices assigned at Saint Martins le Grand and it be commanded by Writ to safe keep the parties and to cause the Record and Process to come before the same Justices then shall the parties be kept as the Law requireth But no Record may be sent before the same Justices but that the Mayor and Aldermen shall have fourty dayes respite by appointment of the same Justices after first Sessions then to advise them of the said Record and of the Process of the same and at the first Sessions of the Justices after fourty dayes shall the said Process and Record be recorded before the same Justices by mouth of the Recorder of the said City And of Judgements given before the Mayor and Aldermen in the Chamber of the Guild-Hall according to the Law Merchant no Writ of Error is wont to be sued Item by ancient custome of the said City all the Liberties and Priviledges and other customes belonging to the said City are usually recorded by mouth and not to be sent or put elsewhere in writing Item the Citizens of London by custome of the City ought not by any Writ to go out of the City in any sort to pass upon an Enquest Item the Wife after the death of her Husband by custome of the City shall have her Frank Bank viz. a woman after the death of her husband shall have of the Rents within the same City whereof her husband died seized in Fee And in that Tenement wherein the husband and she did dwell together at the time of the death of the husband the woman shall have to her self wholly the Hall the principal chamber and the cellar wholly and shall have the use of the Oven the Stable Privy and Yard in common with other necessaries thereunto belonging for her life and at that hour that she is married she loseth her Frank Bank and her Dower of the same saving her Dower of other Tenements as the law requireth Item every Freeman of the said City using Trade may by custome of the same City take an Apprentice to serve him and learn him his Art and Mystery and that by Indenture to be made between him and his said Apprentice which Indenture shall be examined and
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
hath three great commodities that is to say Air for his Health Light for his profit prospect for his pleasure may not be taken away no more then a part of his House may be pulled down whereby to erect the next House adjoyning And with this resolution agreeth the Case of Eldred reported by Sir Edw. Cook in his Ninth Report fol. 58. where he sheweth the ancient form of the Action upon the case to be quod messuagium horrida tenebritate obscuratum fuit but if there be hinderance only of the prospect by the new erected House and not of the Air not of the light then an Action of the case will not lye insomuch that the prospect is only a matter of delight and not of necessity As to the second it was resolved by the opinion of the aforesaid Judges that the custome of London will not enable a man to erect a new House upon a void space of ground whereby the ancients lights of an old house are stopt up for first the owner of the old house having possession of a lawful easment and profit which hath been belonging unto the house by prescription time out of mind of man may not be prescribed out of it by another thwarting custome which hath been used time out of mind of man but the latter custome shall rather be adjudged to be void and Prescription against a Prescription will never be allowed by the Law 2. It may well be that before time of memory the owner of the said void piece of ground granted unto the owner of the House to have his Windows that way without any stopping of them the which being done and continued accordingly hath begotten a prescription the which may not be defeated by the Allegation of a general custome and with this resolution doth agree a case adjudged Trin. 29. Eliz. Rot. 253. in the Kings Bench whereupon an action upon the case brought by Thomas Bloond against Thomas Mosley for erecting of a House in the County of the City of York whereby the ancient lights of his House were stopped up The Desendant did plead a Custome for the City of York as there is here for the City of London and adjudged that the Custome was naught whereupon the Plaintiff had his Judgement But if the Houses had been new erected Houses or otherwise Windowes had been newly made Windows in that ancient House the erection of that new House upon that void space of Ground would have been lawful notwithstanding that the Windows and Lights be stopped up for it shall not lie in the power of the owner of the ancient House by setting out his new Windows to prevent him that hath the void peice of Ground from making the best benefit of it As to the third point it was conceived that if the new house be only erected upon the ancient foundation without any inlargement either in Longitude or Latitude howsoever it be made so high that it â—oppeth up the lights of the old house yet he is not subject unto any action because the law authorizeth a man to build as high as he may upon an ancient Foundation and it is no reason to foreclose a man from making his house convenient unto his estate and degree by building up higher when there is no other impediment but only some windowes which are built out over his house and agreeing to this seemeth the old book of 4. E. 3. 150. to be where an Assize of Nusans was brought for erecting his house so high that the light of the Plaintiff in the next adjoyning house was disturbed by it and the Plaintiff upon the opinion of Herl Chief Justice did not proceed in the Assize but let it fall to the ground but if the new builded house exceeded the ancient foundation whereby that excess is the cause of stopping up of lights then is he subject unto the action of him whose light is stopped up as it may appear by 22. H. 6. 25. And in the case at the Bar Judgement was given for the Plaintiff because he had brought his action for building of a new House upon a void piece of ground by which his Windows were stopt up And Keeme the Defendant only justifieth by the Custome the erection of the House upon an old Foundation and upon the void piece of ground the which is not any answer at all unto that which the Plaintiff layeth unto the charge of the Defendant Touching the Custome of Citizens leaving that Trade whereunto they have been Apprentices seven years and betaking themselves to other Trades IOhn Tolley having been an Apprentice in London by the space of seven years unto a Wool-Packer after the seven years expired is made a Freeman of London afterwards he leaveth the Trade of a Wool-Packer and betaketh himself to the Trade of an Vpholster and doth exercise that Trade by many years whereupon one Thomas Allen an Informer doth exhibit an Information in the Court of the Mayor of London as well for the King as for himself upon the branch of the Statute made in the fifth year of the late Queen Elizabeth cap. 4. whereby it is enacted That after the first day of May next ensuing it shall not be lawful unto any person or persons other than such as now do lawfully use or exercise any art Mystery or manual occupation to set up c. any such occupation now used or occupied within the Realm of England or Wales except he shall have been brought up seven years at the least as an Apprentice in manner and form aforesaid nor to set any person on work in such Mystery Art or Occupation being not a Workman at this day except he shall have been an Apprentice as aforesaid or else having served as an Apprentice as is aforesaid shall or will become a Iourney-man or hired by the year upon pain that every person willingly offending or doing the contrary shall forfeit and lose for every default fourty shillings for every moneth And he sheweth that Iohn Tolly the now Defendant hath exercised the trade of an Upholster by the space of fourty moneths whereas he was never an Apprentice to that trade by the space of seven years contrary unto the aforesaid Statute whereby the said Thomas Allen doth demand the forfeiture of eighty pound unto the King and himself whereof he the said Allen doth require the one moyety according to the form of the said Statute And this Information being removed out of the Court of the Mayor of London by Certiorari into the Kings Bench the said Iohn Tolley doth plead a special Plea in Bar shewing that there is a custome of London which hath been used time out of mind of man That every Citizen and Freeman of London which hath been an Appretice in London unto any trade by the space of seven years may lawfully and well relinquish that trade and exercise any other trade at his will and pleasure And sheweth further That all the Customes
It was agreed and resolved That it may and doth well enough hold For howsoever that none was charge able at the Common Law by the name of an Administrator inasmuch as by the Statute of 31. Ed. 3. cap. No accusation lay against an Administrator by that name And that A custome may not commence since the making of that Statute yet inasmuch as he was chargable at the Common Law as an Executor for his Administration so that the name of the charge is only changed and yet in substance is all one For every Executor is an Administrator and the pleading is upon an action brought against an Executor that he never was Executor nor ever administred as an Executor And an Administrator hath the quality and office of an Executor Therefore the custom of Forreign Attachments will hold against an Administrator as well as against an Executor As to the third Question which is Whether the Forreign Attachment for the debt due unto the Intestate after the promise broken be such a dispensation with the promise that no Action now lieth for the Administrator upon the breach of the promise It was agreed and resolved that the promise was dispensed with and no action lay upon the breach of it for the debt due by Tenant unto the Intestate which was the ground and cause of the promise made unto Spink the Plaintiff is taken away by the judgement had in London upon the custome of Forreign Attachments Et sublato fundamento fallit opus And therefore if after the promise broken there had been a Recovery had of the principal debt by the Plaintiff as Administrator or otherwise there had been a Release made unto the Defendant Now the Action upon the Case upon the promise would have failed inasmuch as the debt which was the consideration and ground of the promise is gone and so the dampnification which he should have had by not performance of the promise faileth And agreeing to this resolution was the Case of one Bardeston and Humfry cited to be adjudged whereupon an accompt he that was found in Arrearges upon a consideration of forbearance by one moneth promiseth payment of them And those Arrerages thus due being attached in the hands of the Accomptant after the promise broken It was held that no Action might afterwards be maintained upon the breach of promise The Case concerning the Prisage of Wine KIng Edward the third in the first year of his Reign doth by his Letters Patents bearing date the same time grant unto the Mayor and Commonalty of London that no prisage shall be of any of the Wines of the Citizens of London But they shall be free and discharged from the payment of all manner of Prisage George Hanger being a Citizen and Freeman of London and Resient within the City fraughteth four several Ships with Merchandize to be transported beyond the Seas the which four Ships being disburdened of the said Merchandize are laden with Wines Two of the Ships came up the Thames at London and before any unbulking of them George Hanger maketh Frances Hanger being his wife his Executrix and dieth Afterwards the other two Ships came up to London Sir Thomas Waller being cheif Butler of the King by virtue of Letters Patents made unto him Demandeth the payment of Prisage of the said Frances Hanger for the Wines in the said four Ships that is to say To have of every of the Ships one Tun before the Mast and one other Tun behind the Mast She denieth the payment of it whereupon the said Sir Thomas Waller as chief Butler exhibiteth his Information into the Kings Bench against the said Frances Hanger Whereunto the said Frances pleadeth a special Plea in Barre shewing the whole matter as abovesaid opon which Sir Thomas Waller demurreth in Law The Questions of this case are two The first is whether for the Wines which came up the Thames in the two Ships before the death of George Hanger any Prisage ought to be paid unto the King or not The second is whether any Prisage ought to be paid for the Wines which were upon the Sea in the Ships before the death of the said George Hanger but came not up the Thames until after the death of George Hanger The case was argued at several times by Sir Henry Mountague Knight then Recorder of London now Lord chief Justice of the Kings Bench Thomas Coventry then Utter Barister now Solicitor General unto his Majesty and Francis Mingay an Utter Barister of the Inner Temple on the behalf of Frances Hanger and by Henry Yelverton then an Apprentice of the Law of Graies-Inn and now Attorney General unto his Majesty and Thomas Crew of the same Inn likewise an Apprentice of the Law on the part of Sir Thomas Waller Likewise it was argued at several times by the Judges of the Kings Bench that is to say first by Sir Thomas Fleming Chief Justice of the Kings Bench Sir Christopher Yelverton Sir David Williams and Sir Iohn Crook and afterwards by Sir Edward Cook Chief Justice of the Kings Bench Sir Iohn Crook Sir Iohn Dodridge and Sir Robert Houghton And Sir Edward Crook Sir Christopher Yelverton Sir David Williams and Sir Iohn Dodridge were of opinion that judgement ought to be given for Frances Hanger against Sir Thomas Waller for they conceived upon the reasons following that no Prisage ought to be paid neither for the Ships that came in after the death of George Hanger nor for the Ships that came in before the death of George Hanger but they all were to be discharged of the payment of Prisage by vertue of the said Charter made by Edward the third unto the Mayor and Commonalty of London First in regard thath these Wines thus in each of the four Ships aforesaid remained notwithstanding the death of George Hanger to be still the Wines of George Hanger for if Frances Hanger the Executrix were to bring an Action for the recovery of them she should bring an Action as for the Wines of George Hanger if Frances Hanger should be wained or attainted of Felony or Treason those Wines should not be forfeited insomuch as they are not the Wines of Frances Hanger but of George Hanger If a Judgement in Debt or other Action should be had against Frances Hanger as Executrix of George Hanger these Wines should be taken in execution as the Wines of George Hanger and so these Wines thus brought in before and after the death of George Hanger continuing as yet the Wines of George Hanger to be recovered as his Wines to be taken in execution as his Wines and to prevent a Forfeiture because these Wines shall be said to be the Wines of George Hanger whereby they may be protected and priviledged from the payment of Prisage within the words intent meaning of the before recited Charter made by King Edward the third which pointeth rather at the Wines then at the person of George Hanger
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
and if the Tenant come and plead then he shall have an Essoyn and so after every appearance and if he make default at the Grand Distress then shall Commandment go to the Sheriff by the Mayors precept that the Sheriff shall come to the place wasted and shall enquire of the waste and damages according to the Statute and that they return the same at the next Hust of Common Pleas and the Plaintiff shall recover the place wasted and the treble damages by the Statute In a Writ of Error of Judgement given in Court before the Sheriffs in Actions personal and in Assizes of Novel Desseizen or Mortdanc taken before the Sheriffs and the Mayor shall make a Warrant to the Sheriffs to cause the Record and Process to come at the next Hust of the Pleas and that they cause the parties to be waâ—ned to hear the Record and after the Record and Process be in the Hust although the Defendant come by warning or make default the Errors shall be assigned and there the Judgement shall be affirmed or reserved as the Law requireth And it is to be noted that by custome of the same City that when a man is condemned in debt or attaint of damages in any action personal before the Sheriffs and bringeth such a Writ of Error he which bâ—ingeth the Writ must before he be delivered out of Prison find sufficient Sureties of men resident within the City to be boâ—nd before the Mayor and Sheriffs to pay the money or to being in the body taken in case the Judgment be affirmed and in like sort is to be done where damages are recovered in Assize before the Sheriffs and Coroners In a Writ of Replegiari the process is such that if any one take a Distress or other sole thing within the said City he which oweth the goods may come to one of the Sheriffs and shall have a Minister at the Commandment of the Court to go to the party that took the goods and if he may have the view to praise them by two honest men and then shall a plaint be made in the Sheriffs paper-Office in this wise T. S. queritur versus I. L. de averus suis injuste Capt. in Dominio suo vel in libero Tenemento suo in â—arochia Sancti c. And the same party shall then find two sufficient Sureties to sue and make return of the Goods or the pâ—ice thereof in case the return be awarded and so shall have deliverance and the Parties shall have a day prefixed at the next Hust of Common Pleas and then at the next Hust of Common Pleas the Sheriff shall make a Bill containing all the matter and the plaint and shall carry the Bill to the same Hust and there it shall be put upon the file and the parties shall be demonded at what day the one or the other may be essoyned of the common Essoyn and if that day the Plaintiff maketh default return shall be awarded to the Avowant and return in such case is awardable three times by the custome of the City and the third time not reprisable and at that time the Avowant maketh default then it shall be awarded that the goods remain to the Plaintiff viz. that the goods remain without any recovering and if it be that the Sheriff cannot have view of the Distress taken then he shall certifie it into the said Hust and there shall be awarded the Wetherum and upon that process shall be made and if the parties come and Avowry be made and pleaded to the Judgement or to the Issue of the inquest then shall Judgement be given or process to cause the Jury to come as the case requireth and the parties may be Essoyned after appearance and if the party claim property in the Distress and then certifie the same in the Hust and the process shall be made by precept made to the Sheriff to try the property c. And although the party be essoyned of the Kings service in a Replegiare and at the day that he hath by Essoyn make default or bringeth not his Warrant he shall not be cleared of damage In a Writ of Particepat faciend to make partition between Parceners of the Tenants in London the Writ closed shall be directed to the Mayor and Sheriffs containing the matter according to the form of such Writ and the parties shall be warned by precept from the Mayor directed to the Sheriff and the Tenants may be essoyned and if they come they may plead their matter and if they make default the Writ of Partition shall be awarded by default and every Beadle of the said City by the advise of his Alderman against every Hust of Common Pleas shall cause to be summoned twelve men being Free-holders of the best and most sufficient of his Ward to come to the Guild-Hall aforesaid and to pass in Juries if need be if there be so many men landed in the said Ward and the Juries shall be taken as before is said in the Hust of Plea of Land And note that Writs of Exigent are taken out of the Hust as well in Hust of Common Pleas as of Pleas of Land but those Exigents that are taken in the one Hust are not to be sued in the other Hust and at the fifth Hust the Utlaries and Weyneries shall be given in full Hust before the Mayor and Aldermen by the mouth of their Recorder and also all Judgements which are given in the Hust shall be given in the same manner and the Exigent after every Hust shall be enrolled and sent into the Chamber of the Guild-Hall aforesaid And you must note that all Amerciaments incident to the said Hust pertain to the Sheriffs of the said City and that the Aldermen of London shall be suâ—moned to come to the Hust and ougâ—â— by custome of the City to be summon by one of the Sheriffs Officers sittiâ—â— upon a horse of a C. s. price at least Assize of Mort d'Ancest in London THe Assizes of Mort d' Ancest aâ— holden and determinable before the Sheriffs and Coroners of London oâ— the Saturdayes from fourteen days tâ— fourteen days at the Guild Hall for which the Process is this viz. he that wilâ— have such Assizen shall come in the Hust or into the Assembly of the Mayoâ— and Aldermen in the Chamber of the Guild Hall any Munday as is said in the Assize of fresh force and shall make a Bilâ— containing the form of the Assize oâ— Mort d'ancest according to the case anâ— that Bill shall be enrolled and after the common Clerk shall make another Bâ—â— containing all the matters of the finâ— Bill making mention of the title of the Hust or of the day of the assembly of the Mayor and Aldermen and this Bill shall be sent unto the Sheriffs or either oâ— them to serve according to the custom and whiâ—â— Bill shall be served by any Serjeant or other Minister of the Sheriffs viz. the land Serjeant the Wednesday next