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
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
Court of Record as an information may be exhibited in it upon this Statute of the 5. of Eliz. cap 4 It was answered and resolved that it was For it is expressed by precise terms in one of the last branches of the said Statute That the said Mayor or other Head-Officers of the Cities or Towns Corporate shall have full power and authority to hear and determine all and every offence and offences that shall be committed or done against this Statute or against any branch thereof as well upon Indictment to be taken before them in the Sessions of the Peace as upon Informatioâ—â— Action of Debt or Bill or Complaint to be sued or exhibited by any person and shall and may by vertue thereof make process against the Defendant and award Execution as in any other case they lawfully may by any the Laws and Statutes of this Realm and the Presidents have been alwayes accordingly For in the 44. year of the late Queen Eliz. an Information was exhibited by one Robinson against Toby in the Mayors Court of London because he exercised the Trade of a Cutler where he had not been an Apprentice by the space of seven years and allowed to be well exhibited So in the Case \l = o \f one Banister and Information exhibited in that Court because he had exercised the Trade of a Weaver where he had not been Apprentice by the space of seven years was admitted good As to the seventh Question which is Whether the Informer may demand the Moyety of the forfeitures upon this Statute because in a branch in the latter end of the Statute it is enacted That all manner of Amerciaments Fines Issues and Forfeitures which shall arise grow or come by reason of any offences or defaults mentioned in this Act or any branch thereof within any City or Town Corporate shall be levied gathered and received by any person or persons of the same City or Town Corporate as shall be appointed by the Mayor or other Head Officers mentioned in this Act to the use and maintenance of the same City or Town in such case and condition as any other Amerciaments Fines Issues or Forfeitures have been used to belevied or imployed within the same City or Town Corporate by reason of any Grant or Charter from the Queens Majesty that now is or any her Graces Noble Progenitours made or granted to the same City Burrough or Town Corporate any thing or clause before mentioned or expressed to the contrary notwithstanding It was answered and resolved That the Informer might well demand a Moyety for there being a former branch that enacted that the one half of all forfeitures and penalties expested and mentioned in this Act other than such as are expresly otherways appointed shall be to our Soveraign Lady the Queens Majesty her Heirs and Successors and the other moyety to him or them that shall sue for the same in any of the Queens Majesties Courts of Record or before any of the Jusâ—iâ—es of Oyer and Terminer or before any other Justices or Presidents and Councel before remembred by action of Debt Information Bill of Complaint or otherwise The Informer may demand his Moyety by vertue of this branch and the subsequent branch which gives the Forfeitures unto the Mayor shall be taken only of the forfeitures which are given to the Queen and not of that which is given to the Informer who is the means whereby the other Moyety is brought to the Mayor and other Officers The Custome of London Touching Forreign Attachment IOhn Tenant a Citizen of London is indebted fourty pound by specialty unto one other Citizen of London the which said Citizen is likewise indebted unto one Robert Haydon another Citizen of London in fourty pounds upon a simple contract The Citizen so indebted unto Haydon died intestate Thomas Spink taketh Letters of administration of the goods and chattels of the said intestate Tenant after the day of payment of his fourty pounds promiseth Spink in consideration that he will forbear him the payment of the said fourty pounds by the space of two months to pay to Spink the said fourty pounds Spink forbeareth Tenant accordingly but the fourty pounds is not paid according to promise Afterwards the debt due by Tenant is attached in his hands according to the custome of London of Forreign Attachments for the debt due by the intestate unto Haydon Spink bringeth his action upon the case against Tenant for not paying the 40. pounds according to his word who sheweth in his Plea in Bar That the Debt due by him unto the Intestate was attached according to the custome of Forreign Attachments And upon this Plea in Bar Spink demurreth in Law The Questions in this Case are 1. Whether this Debt of the Intestate being only a Debt due upon a simple Contract be such a Debt of which a Forreign Attachment may be made according to the custome of London 2. Whether the custome of forreign Attachments may hold in this Case Inasmuch as by the Statute made in An 31. Ed. cap. the name of Administrators was created and before that Statute Lettars of Administration were never granted 3. Whether there being a Forreign Attachment of the Debt due unto the Intestate after the not performing of the promise and Title of action given unto Spink the Plaintiff be a dispensation with the promise so as now the action faileth upon the promise for not paying the money As to the first Question which is Whether for the debt being a debt due only upon a simple contract a forreign Attachment may be used or no It was agreed and resolved that a forreign Attachment might well be sued for it For by the custome of London the Executor or Administrator being chargeable for a debt due by the Testator or Intestate upon a simple contract as well as upon a specialty a Forreign Attachment may be sued as well for that debt as for a debt due upon Specialty And howsoever the Kings Bench or any other Court of Westminster be not bound to take notice of this particular custome of London in charging the Executors or Administrators upon the simple Contract nor to give judgement according to the custome yet when judgment hath been given according to that custome and that judgement appeareth judicially unto the Judges by the Record Now they ought to allow the custome and give their judgement according to that custome in affirmance of the judgment given in London But it was agreed that if there had not been any debt due by the Intestate unto Haydon Now howsoever there had been an Attachment made in London of the debt due by Spink unto the Intestate and a judgement given upon it yet might the Administrator have relieved himself by way of Denial and Traverse that there had been any debt due by the Intestate unto Haydon As to the second Question which is Whether the custome of Forreign Attachments in London may hold as this Case is
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
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
were laden with Wines and returning to the coasts of England the hand of Heaven had not as yet disfranchised him from being a Citizen and member of the City of London And as to two of the Ships the said George Hanger had his abode here until such time as they were in the Port at London safe from being swallowed by the surging waves of the Sea secure from the surprizing of the desparate Pyrates the which being so that three of the four times as to all the four Ships were past during the time that he was a member of the City and also part of the fourth time as to two of the Ships it is reasonable to think that these Ships shall participate of Immunity and Priviledge it be discharged of the payment of prisage which is granted by the Charter made bâ— King Edward the third notwithstanding that the last time was not comâ— before his death and the more especially also because the law hath such regard unto the commencement and beginning of a thing and will have respect unto it notwithstanding that there belong distance of time between the in choation and consummation of it Anâ— therefore where a servant having an intention to kill his Master doth depart ouâ— of his service and long time after his departure out of his Masters service doth kill him that is petty treason in the servant in regard of the retrospect which the Law hath to the first intention of the servant when he was in his Masters service and yet if you respect the time of the murder committed without regard had unto the first time it cannot be petty treason because the servant was out of his service at that time Seventhly it is to be observed that this Charter to be discharged of the payment of prisage granted by King Edward the third was granted unto the Mayor and Commonalty of London which is a body that alwayes continueth and never dieth and so howsoever that George Hanger unto whom as unto a member of that body the priviledge of that Charter is distributed be dead and cut off from that body yet in so much that the body politique of the Mayor and Commonalty unto whom the Charter was made liveth the Priviledge and Immunity of George Hanger to have his Wines discharged of the payment of prisage will live and continue in that body notwithstanding that George Hanger be dead Eightly this Charter being a Charter made for the advancement and good of Merchandize and trading which are as it were the Blood which giveth nourishment unto the politique body of the Kingdome is to have a favourable and benigne construction whereby trading may be the better supported and maintained and the life of the State longer continued and therefore where King Edward the third in the third year of his Reign granted unto the Merchants of Almagne France and Spain that they should come safely and securely with their Merchandize into England and should be free from Pontage Muragâ— and such other Tolles this Grant was allowed to be good and received an exposition according unto the Law oâ— Merchants which is the Law of Nations and howsoever it would not bâ— good by the strict rules of the Common Law because the Merchant-strangeâ— were not a Corporation able to take yet it was admitted sufficient by that Aâ—gem marcatoriam according to whicâ— in some cases of Merchants the Judgâ— of the Common Law ought to give the Judgement wherefore in the case at the Bar this Charter concerning the City of London which is the University of Merchants and this case concerning George Hanger which was a Scholar trained â—â— this in School and had been matriculated in this place the Judge are to fram and give their Judgement so as the Unversity and Scholars of it may receive the better encouragement to proceed and may not be disheartened to diveâ— their courses intended from Merchandiâ—ing and Trading by reason of the striâ— construction of Charters which givâ— unto them Immunities and Privledges Ninthly and lastly this very case received formerly the resolution of three Barons in the Exchequer upon an Information exhibited there by Sir Thomas Waller that Frances Hanger should be discharged of Prisage for the Wines in all the four Ships whereupon Sir Thomas discontinued his Information and exhibited it denove in the Kings Bench whereby he would take the opinion of this Court likewise and there having been former opinion conceived for the discharge of them it is more agreeable with reason to have this opinion confirmed than opposed But Sir Thomas Fleming Sir Iohn Crook and Sir Robert Haughton seemed upon the reasons hereafter ensuing that Judgement ought to be given for Sir Thomas Waller and that prisage ought to be paid by Frances Hanger both for the Wines wich were in the Ships that were arrived before the death of George Hanger as likewise for the Wines which were in the two Ships which were upon the Sea at the time of the death of George Hanger howsoever by way of advice they wished that for the Wines in the Ships which were come home during his life the payment of prisage ought not to be pressed by Sir Thomas Waller First in regard the Charter extendeth only to discharge the Wines of such a person as is a Citizen of London of the payment of prisage and George Hanger being dead and so a Citizen of the heavedly Ierusalem may not be longer said to be a Citizen of London and so not within the compass of the Immunity granred by the Charter Secondly this priviledge to be discharged of the payment of prisage is in respect of the person who is the owner of the Wines and not in respect of the Wines themselves and then there being a remotion of the person unto whom the exemption is tyed there is a remotion of the exemption it self and therefore notwithstanding a Tenant in ancient Demesne be by the Common Lawes of this Realm to be discharged of the payment of Toll in all Faires and Markets yet if the Tenant in ancient Demesne make his Executors and die the Executors for the Goods of the Testator are to pay a Toll in so much that it was only a personal priviledge which dieth together with the person Thirdly this Charter bereaving the King of the payment of prisage which is a Flower of his Crown ought to have a strict construction so as none may take benefit of it but only such as are within the precise words of the Charter wherefore George Hanger being dead and so no more a Citizen of London howsoever the Wines in the Ship may be said to be the Wines of George Hanger to a special intent that is to say for the payment of his Debts and the performance of his Legacies according to his true intendment expressed in his Will yet may they not be said to be the Goods of George Hanger to every intent in so much that Frances Hanger the Executrix hath