the Parish of Grace-Church street London for which house a rent of five pound yearly hath been reserved time out of mind in the third year of the King that now is by Indenture doth make a Lease for five years unto one Withers of part of the House and of the Shop rendring the Rent of five pound by the year at the four usual Feasts that is to say at the Feast of the Annuciation c. by even and equal portions And in the same Indenture it is further covenanted and agreed that Withers the Leassee shall pay unto Burrel the Leassor a hundred fifty pound in name of a Fine and Income the which said hundred and fifty pound is to be paid in manner and form following that is to say thirty pound yearly and every year during the said term at the four usual Feasts by even and equal portions the term of five years expired the said Burrel in the tenth year of the said King by Indenture maketh a new Lease for the term of seven years of the said part of the house and the Ware-house unto one Goff rendring the rent of five pound by the year at the Feast of S. Michael the Archangel and the Annunciation of the Blessed Virgin Mary by even and equal portions And in the same Indenture it is further covenanted and agreed that Goff shall pay unto the said Burrell 175. l. in the name of a Fine and Income in manner and form following that is to say twenty five pound yearly during the said teâ—m at the said two usual Feasts by even and equal portions Dunn Parson of Grace-Church exhibiteth his Petition unto the then Lord Mayor of London against the said Burrel and Goff wherein he supposeth that Tythes are paid unto him only according to the rate of five pound by the year where in truth he ought to have an allowance according unto the rate of thirty pound by the year The Lord Mayor by the advice of his Councel doth call the said Burrell and Goff before him and upon full hearing of the said cause doth order the pâ—yment unto Dunn according unto the rates of five pound by the year and not according to the rate of thirty pound by the year whereupon the said Dunn doth exhibit his Bill of Appeal unto the Lord Chancellour of England in the Chancery wherein he doth make a recital of the Decree made and established by Act of Parliament in 37. H. cap. 12. and also of the case special as it standeth charging the said Goff and Burrell with a practice of fraud and covin in the reservation of this twenty five pound by year by way of Fine and Income and defrauding him of that which belonged unto him The said Goff and Burrell do make their answer and shew that the rent of five pound by the year is the ancient rent reserved and that they are ready and have often tendred the payment of their Tythes according to that proportion but it hath been denied to be accepted and they do take a traverse unto the fraud and covin wherewith they stand charged And upon this answer Dunn the Parson demurreth in Law And this case was first argued in the Chancery by Sir Francis Moor Serjeant and Thomas Crew on the behalf of Dunn and by Sir Anthony Benn late Recorder of London and Iohn Walter on the part of the Defendants The Lord Chancellour having called Sir Henry Mountague Cheif Justice of the Kings Bench Sir Henry Hobart Chief Justice of the Common Pleas Sir Iohn Doddridg one of the Justices of the Kings Bench and Sir Richard Hutton one of the Justices of the Common Pleas to be his Assistants and after two Arguments heard on each side in the Chancery upon Suit made to the King by Sir Francis Bacon then Lord Chancellour of England a special Commission was granted unto Thomas Lord Archbishop of Canterbury Sir Francis Bacon Lord Chancellour of England Thomas Earl of Suffolk late Lord Preasurer of England Edward Earl of Warwick Keeper of the Privy Seal William Earl of Pembrook Lord Chamberlain of the Kings houshold Iohn Bishop of London Bishop of Eli Sir Henry Mountague Sir Iulius Caesar Master of the Rolls Sir Iohn Doddridg and Sir Richard Hutton wherein there was a special recital of the question and cause depending between Dunn on the one part and Burrell and Goff on the other part and power given unto them for the hearing and determining of this cause and likewise for the mediating between the Citizens of London and the Parsons of the several Parishes and Churches in London and making an arbitrary end betwixt them whereby a competent provision may be made for the Ministers of the Churches of London and too heavy a burthen may not beimposed upon the Citizens of London with a command further that they shall certifie the King what was done in the premises And this Commission was sat upon at York-house where the case was argued at several times by Sir Randal Crew and Sir Henry Finch Serjeants of the King on the part and behalf of the Ministers of London and by Sir Henry Yelverton Attorney of the King and Sir Thomas Coventry Solicitor of the King on the behalf of the Citizens of London and because the main Question remained as yet undetermined and no resolution is given either in point of Law nor Arbitrary end by way of mediation I shall only open the parts of the case and make a summary report of them without further debate of them The Case divideth it self into six parts that is to say First whether any thing can be demanded by the person for houses in London according to the course of the Common Law Secondly whether custome can establish a right of payment of any thing unto the Parson for houses and of what nature the payment established shall be Thirdly what was anciently payable by the Citizens of London for their houses unto the Ministers of London and how grew the payment Fourthly whether this twenty five pounds reserved upon a covenant by way of fine and income be a rent within the words of the Decree made 37. H. 8. cap. 12 Fifthly whether this reservation of twenty five pounds by the year by way of fine and income shall be adjudged to be a rent within the intent and meaning of the Statute an Decree or no Sixthly who shalâ— be Judge of the Tithes for houses in London and the remedy for the Parson in case that payment be not made unto him according to the Decree As to the first part which is whether by the Common Law any thing can be demanded for the houses in London It is to be agreed and clear that nothing can be demanded For that which the Parson ought to demand of houses is Tythes and it is improper and cannot be that Tythes can be paid of houses First in regard that houses do not increase and renew but rather decrease for want of reparations and
REPORTS OF SPECIAL CASES Touching several Customes AND Liberties OF The City of LONDON Collected by Sir H. Calthrop Knight Sometimes Recorder of London Whereunto is annexed divers ANCIENT CUSTOMES AND USAGES Of the said City of LONDON LONDON Printed for Abel Roper at the Sun St. Dunstans Church in Fleetstreet 1670. To the Right Worshipful Sir THOMAS LOE K. ALDERMAN OF The City of LONDON Worthy Sir BEing put in mind of that saying of Seneca Ingratum sidixeris Omnia dixeris And having a desire to avoid that Rock whereupon so many have suffered Shipwrack have had often conflicts within my self wherein I might express my thankfulness unto you of whom I a Stranger have received so many undeserved favours and at last bethought my self that you being one of the Noble Governours of this famous City of London and being likewise a President over several Companies of Merchants in it a Treatise concerning the Customs of the City of London or otherwise concerning the Priviledges and Immunities granted unto the Merchants of London would not altogether be an unfitting subject to be presented unto your view whereupon I have selected som few Cases collected by my self of the resolution of the Iudges concerning some Customes of your City and some Charters granted unto the Citizens of it and offered them unto your consideration the which I desire you to accept as a pledge and token of a thankful mind howsoever they in themselves are unworthy your pains to be taken in the reading of them and so with my truest wishes of the continuance of all happiness unto your self your thrice Noble Lady and the branches of your flourishing Family I take my leave ever resting From my Chamber in the middle Temple 2 Januarii Anno Dom. 1661. The affectionate and hearty well-wisher of all good unto you and yours Henry Calthrop The Contents of several Cases THe Case of the City of London concerning Neusances in stopping up the lights of their Neighbours houses by new Buildings page 1 Touching the custome of Citizens learning that Trade whereunto they have been Apprentices seven years and betaking themselves to other Trades 9 The custome of London touching forreign Attachment 27 The Case concerning the prisage of Citizens Wines  The Case concerning repairing of Wharfes and Docks  The cuctome of London to fine one chosen by the Commons to be Sheriff and refusing to hold 33 The Case of Merchant-Adventurers 36 Certifying Indictments upon Certioraries 42 Concerning Orphans Portions 46 The custome in not removing body and cause upon Habeas Corpus 50 The Case concerning payment of Tythes in London 54 Divers ancient cuctomes and usages of the of City London 79 Hust of Pleas of Land 80 Hustings of Common Pleas. page 85 Assizes of Mort d' ancest in London 94 Assizes of Novel Dissezen called freshforce in London 97 De curia Majoris London Custumis Civitatis ejusdem diversis Cesibus terminalibus in eadem curis 100 The Commission and Article of the Wardmote Inquest by the Mayor 129 An Act for the reformation of divers abuses used in the Ward-mote Inquests 146 The Articles of the charge of the Ward-mote Inquest 151 An Act Parliament for the preservation of the River of Thames 169 An Act of Common Councel concernidg the conservation and cleansing of the River of Thames 174 The Oath of the Constables within the City of London 180 The Oath of the Scavengers 182 The Oath of every Freeman of this City of London 183 An Act of Common Council concerning making Freemen of the City againct colouring of forreign Goods 185 The Statutes of the Streets of this City against Annoyances 187 Old Laws and Customes of this City 196 By Act of Parliament in 14. Car. 2. 198 REPORTS of special CASES Touching several CUSTOMES And LIBERTIES Of the City of LONDON c. The Case of the City of London concerning Neusans in stopping up the lights of their Neighbours Houses by New-buildings REginold Hughs an Attorney of the Kings Bench being seized in his demesne as of Fee of an ancient house in the Parish of Saint Olaves in the Ward of Queen Hithe London in the South-Part of which House have been three ancient Lights time our of mind Anthony Keeme having taken a Lease for 31. years from the Rector and Guardians of the Parish Church of Saint Michael at Queen Hithe by Indenture of a rumous house and yard next adjoyning unto the said House with a Covenant to bestow a 100 marks at the least upon the repairing or new building of the said House doth within two years pull down the said House and doth build a new House in the place where the old House stood and likewise upon the yard whereby the three ancient Lights on the South-side of â—â—â—â— House are stopt up whereupon Reynold Lewes doth bring his action upon the case against Anthony Keem for the stopping up the Lights unto which the said Anthony doth plead a special Plea in Bar shewing the ruinousness of the House and likewise the Lease made by the Rector and Guardians and the Covenant comprised within the Lease and doth also shew that there is a custom in London that if one have an ancient house wherein there are ancient Lights and one other hath a House adjoyning upon that House he that hath the adjoyning House may well enough enhance his House or build a new House upon his ground and to stop those ancient Lights of the House next adjoyning unless there be some writing to the contrary And he doth aver in facto that there was no writing to the contrary and that he according to the Custome did take down the old House and build a new one upon the same Foundation and upon the Yard opposite unto the said Lights whereby they were stopped up and upon this Plea in Bar the Plaintiff demurreth in Law The Questions of this case are First whether it be lawful for a man to build a House upon his own Ground whereby the Lights of an ancient House are stopped there being no Custome to enable him Secondly whether the Custome of London will enable a man to build a new house from the ground where no house formerly was whereby he may stop the ancient lights of his Neighbours house Thirdly Whether upon an ancient foundation a house may lawfully be enhansed so as it shall stop up the light of the Neighbours house adjoyning As to the first it is clear by the opinion of Sir Thomas Flemming Chief Justice of the Kings Bench Sir Cristopher Yelverton Sir David Williams and Sir Iohn Crook Justices of the Kings Bench that there being no custome it is not lawful to erect a new house upon a void piece of ground whereby the old lights of an ancient house may be stopped up for the rule of equity and law saith Utere tuo ut alienum non laedas and the light which cometh in by the Windowes being an essential part of the House by which he
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
Custome for the payment of a thousand pound according unto the time limited by the Will and according to the Will aforesaid The Executor denieth to find Sureties whereupon he was committed to prison and a Habeas Corpus being awarded out of the Court of Kings Bench to have the Body of the Executor together with the cause all this matter appeareth upon the return And now it was moved by Richard Martin late Recorder of London then an Apprentice of the Law that the return was insufficient and so the Executor ought to be enlarged First in regard that the ground of the imprisonment was the Custome of London and the custome is against the Law and void insomuch that it enforceth an Executor to find Sureties for the payment of a Legacy according unto the Will where the law requireth that debts be paid before such time as Legacies be performed and the Law giveth an election unto the Executor to pay which of the Legacies he will in case there be not sufficient to pay all the debts and legacies of the Testator but this exception was disallowed by the said Court insomuch that the custome of London appeareth by the return to be that he shall find Sureties for the performance of the Legacies according unto the Law of the Realm and the Will of the Testator So as if the Executor had not sufficient to pay debts and legacies he hath the same power and liberty after such time as he hath found Sureties as he had before Secondly except on was taken because it appeared by the return that the Devisor was a woman and also only the Wife of a Freeman and not a Free-woman and she is not within the custom of London which only speaketh of a Freeman But this exception was over-ruled for a woman being a Free-woman within the Statute of Magna Charta cap. 29. which enacteth that no Freeman shall be taken or imprisoned c. but by the lawful judgement of his Peers So that she being a Barroness or Countess shall be tried by her Peers upon an Indictment preferred against her she shall also be reputed a Freeman within this custome Secondly the Wife of a Freeman having the liberty and priviledge to Trade in the City and so able to take benefit by it she shall also be bound by the customes of it Thirdly howsoever she was dwelling out of London at the time of the Will made she is a Freeman within the compass of the custome Fourthly it was objected that this custome of London concerning Orphans was an antiquated custome and had not been put in use by many years and therefore ought not now to be put in ure to take away the liberty of a man and especially also because the life of a custome is the usage but this exception was over-ruled for this custome is dayly put in Ure The custome in not removing body and cause upon Habeas Corpus A Petition being affirmed in London by one Hill a Citizen and Freeman of London against another Citizen and Freeman of London upon a Bond of a hundred pound a Summons is awarded against the said obliged and the pretext being returned that he hath nothing whereby he may be summoned within the City upon a Surmize made by Hill the Obligee that one Harrington a Citizen and Freeman of London is indebted in a hundred pound unto the first Obligor a Summons is awarded according to the custome of London of Forreign Attachments for the warning of Harrington who is warned accordingly whereupon Harrington procureth a Habeas Corpus for the removing of his body together with the cause into the Kings Bench upon which Writ a return is made in this manner that is to say That London is an ancient City and that time out of mind of man the Mayor Aldermen and Citizens of London have had Conusans of all manner of Pleas both real and personal to be holden before the Mayor Altermen and Sheriffs of London in London and that in no action whatsoever they ought to remove the cause out of London into any other Court and do moreover shew a confirmation made by R. 2. in the seventh year of his Reign of all their customes and so for this cause they had not the body here nor the cause And exception being taken to the insufficiency of this return it was agreed and resolved by the whole Court of Kings Bench that this return made was ill for common experience teacheth that the usual course is and alwayes hath been that upon Habeas Corpus the body together with the cause have been removed out of London into the Kings Bench and likewise upon Certioraries awarded out of the Kings Bench. Records have been certified out of London into that Court for Justice being to be done unto the Citizens of London as well in that Court as in the 〈…〉 proper Court the Court of London being an inferiour Court unto the Court of Kings Bench where the King is supposed to sit in person ought to yeild bedience unto the Writs awarded out of that Court as the Supetiour Court but if the cause should be such that there should be a failer of Justice in the Kings Bench upon the removing of the cause because it is only an action grounded meerly upon the custome of London then a return made of the special matter will be warrantable or otherwise if the return be made that the custome of London is that no cause which is a meer customary cause wherein no remedy can be had but only in London according unto the custome of London may well be allowed so as the cause specially be returned into the Court whereby it may appear unto the Court that it is such a cause which will not bear action at the Common Law for it is usual in the Kings Bench that if the cause returned unto the Court upon the Habeas Corpus appear to be such a cause as will bear an action only by the custome and not at the Common Law the Court will grant a Procedendo and send it back again to London as if the cause returned appear to be an action of Debt brought upon concesit se solvere or to be an aaction of Covenant brought upon a Covenant by word without any specialty for these be meer Customary actions which cannot be maintained but by the custome of London and therefore that shall be remanded for if the Kings Bench should retain these causes after such time as they are removed and should not remand them there would be failing of Justice and the Judges of the Kings Bench in the person of the King do say Nulli negabimus nulli vendemus nulli differemus justitiam and the reteining of these causes would be a denying of Justice wherefore they do grant a Procedendo and remand it The case concerning payment of Tythes in London RIchard Burrel being seized in his Demesne as of Fee of a House called Green Acre a Shop and Ware-house in