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
Tythes are not to be paid of any thing but such things as do increase and renew as it appeareth by the Levitical Law and the Common Law of the Land Secondly houses are matters of inheritance whereof a praecipe lieth at the Common Law And the rent reserved upon a Lease made of them is likewise knit unto the inheritance and parcel of it so that it shall go along unto him that hath the inheriritance and therefore shall descend unâ—he Heir and it is a rule in Law that Tythes are not to be paid of part of the Inheritance but they ought to be paid of such things as renew upon which reason it is that Tythes by the Common Law of the Land are not to be paid of Slate Stone and Cole digged out of the Pit Thirdly houses being built only for the receiving habitation and dweling of men and for conveniency of protection against the scorching Heats in Summer and tempestuous Storms in Winter without any profit at all redounding unto the owner And the Parson being to have a benefit otherwise in the payment of personal Tythes arising through his industry in the house no Tythes can be demanded for the houses themselves or for the rent reserved upon them Fourthly the Decree made 38. H. 8. which exempteth the houses of Noblemen from the payment of any rate-Tythes sheweth the Common Law to be so that houses of themselves are to be discharged of the payment of Tythes and accordingly it hath been adjudged in divers cases hapning at the Common Law that Tythes by the course of the Common Laws may not be demanded for houses but they are to be discharged As to the second point which is whether custom can establish a right of payment of any thing unto the Pason for houses It is clear that it may well enough for it may well be that before such time as any house was built upon the ground where the house stood there had been a summe of money paid for the profits of the ground in the name of a modus decimandi and so howsoever the house is built upon the ground yet the modus continues and is not taken away by it and so there being a continuance of payment of the modus after the building of the house time hath made it to be a payment for the house But this payment is to be termed a modus decimandi and cannot be well called a Tithe paid for houses because as it is formerly said Tithes may not be paid for houses and all this appeareth by Doctor Grants case in the eleventh Report As to the third point which is what was anciently paid by the Citizens of London unto the Ministers of London and how the payment grew It appeareth by the Records of London that Niger Bishop of London 13. H. 3. made a Constitution in confirmation of an ancient custome formerly used time out of mind that provision should be made for the Ministers of London in this manner that is to say that he which payeth the rent of twenty shillings for his house wherein he dwelt should offer every Sunday and every Apostles day whereof the Evening was fasted one half-penny and he that paid but ten shillings rent yearly should offer but one farthing and all this amounted unto but according to the proportion of 2. sh 6. d. per pound for there were fifty two Sundayes and but eight Apostles dayes the Vigils of which were fasied And if it chanced that one of the Apostles dayes fell upon a Sunday then there was but one half-penny or farthing paid so that sometime it fell out to be less by some little then 2. sh 6. d. per pound and it appeareth by our Book-cases in Edward the third his Reign that the provision made for the Ministers of London was by offerings and obventions howsoever the particulars are not designed there but must be understood according to the former Ordinance made by Niger and the payment of 2. sh 6. d. in the pound continuing until 13. K. Ric. 2. Thomas Arundel Arch-Bishop of Canterbury made an explanation of the constitution made by Niger and thrust upon the Citizens of London two and twenty other Saints days then were meant by the constitution made by Niger whereby the Offerings now amounted unto the summe of 3. sh 5. d. per pound against which explanation there being some reluctation by the Citizens of London Pope Innocent in 5. H. 4. granted his Bull whereby the former explanation was confirmed which confirmation notwithstanding the difference between the Ministers and Citizens of London about those two and twenty Saints dayes which were added unto their number Pope Nicholas by his Bull in 31. H. 6. made a second confirmation of the explanation made by the said Arch-Bishop Against which the Citizens of London did contend with so high a hand that they caused a Record to be made whereby it might appear in future Ages that the Order of explanation made by the Arch-Bishop of Canterbury was done without calling the Citizens of London unto it or any consent given by them And it was branded by the name of an Order surrepritiously and abruptiously gotten and therefore more fit to have the name of a destructory then a declaratory Order the which contending notwithstanding as it seemeth the pain was most usually made according unto the rate of 3. sh 5. d. in the pound for Linwood who writ in the time of K. H. 6. in his Provincial Constitutions debating the question whether the Merchants and Artificers of the City of London ought to pay any Tythes sheweth that the Citizens of London by an ancient Ordinance observed in the said City are bound every Lords day and every principal Feast-day either of the Apostles or others whose Vigils are fasted to pay one farthing for every ten shillings rent that they paid for their houses wherein they dwelt and in 36. H. 6. there was a composition made between the Citizens of London and the Ministers of London that a payment should be made by the Citizens according unto the rate of 3. sh 5. d. in the pound and if any house were kept in the proper hand of the owner or were demised withoutreservation of any rent Then the Churchwardens of the Parish where the houses were should set down a rate of the houses and according unto that rate and payment should be made After which composition so made there was an Act of Common Councel made 14. E. 4. in London for the confirmation of the Bull granted by Pope Nicholas But the Citizens of London finding that by the Common Lawes of the Realm no Bull of the Pope nor Arbitrary composition nor Act of Common Councel could bind them in such things as concerned their inheritance They still wresiled with the Clergy and would not condesâ—end unto the payment of the said elevenpence by the year obtruded upon them by the addition of the two and twenty
words of the Decree wherefore the Party Leassee having expressed himself that this twenty five pounds by the year shall be paid in name of a Fine and Income And the Decree it self shewing that by reason of a Fine or Income less rent is reserved it may not be said that this twenty five pounds by the year shall be a rent within the meaning of the Decree when there is a rent of five pounds also reseserved beside this Income Secondly this Decree made in 37. H. 8. being penal unto the Citizens of London because it inflicteth imprisonment upon him upon his non-payment of his Tythe according to the rent reserved and being also in advantage of the Ministers of London because by vertue of this Decree the Minister is to have according to the rate of 2. sh 9. d. in every twenty shillings where anciently he had but 2. s. 6. d. it is no reason to extend it by equity and to construe that to be a rent within the intent and meaning of the Decree which of it self is a Fne or Income Thirdly there never hauing been above the rent of five pounds by the year reserved upon any Lease made it cannot be taken to be any covin or collusion When the ancient rent is reserved insomuch that now so much as the Law requireth is done and besides where the Common Law or Statute Law shall take notice of a Fraud it ought to be in case where the thing in which the Fraud or deceit was supposed is formerly in being for a Fraud may not be committed to a person or thing not in being Fourthly it is to be reserved so that if no rent at all had been reserved there might not any more have been demanded but only according to the rate of the rent which was last reserved for the houses wherefore the ancient rent of 5. l. being here reserved it cannot be that within the intent and meaning of the Decree there can be more rate-Tythes demanded then according to that rent And besides the very words of the Decree intimates that there is no fraud within the meaning of the Decree but only where by reason of the Fine or Income there is not rent at all reserved or a less rent then was anciently reserved wheresore in the Case at the Barre the old rent being reserved there may be no fraud at all As to the sixth and last part which is who shall be Judge of the payment of Tythes for houses in London and the remedy for the recovery of them It is apparent out of the words of the Decree that the Mayor of the City of London is Judge and is to give order concerning them and Suit is not to be made in the Ecclesiastical Court for them and if it be a Prohibition is to be granted insomuch that the party grieved resorteth unto another Judge then the Statute hath appointed But if the Mayor do not give aid within two moneths after complaint made or do not give such aid as is fitting then resort is to be made unto the Lord Chancellour of England who hath three moneths given him for ending of the said Cause Whereunto is annexed divers ANCIENT Customs AND USAGES Of the said City of LONDON Newly Re-printed LONDON Printed for Abel Roper at the Sun against St. Dunstans Church in Fleet-street 1670. DIVERS ANCIENT CUSTOMS AND USAGES OF THE City of LONDON IN Plato Ferre in Hustings London viz. That all the Lands Tenements and Hereditaments Rents and Services within the City of London and the Suburbs of the same are pleadable in the Guild-Hall within the said City in two Hust of which one Hust is called Hust of a Plea of Land and the other Hust is called Hust of Common Pleas and the said Hustings are kept in the Guild-Hall before the Mayor Sheriffs and other of the said City every week upon Munday and Tuesday that is to say Munday to enter demands and to award Non-Suits and allow Essovnes and on Tuesday to award defaults and to plead saving at certain times and Festival dayes and other reasonable causes on which times no Hust may be kept by Custome of the said City Nota quod Hust of Pleas of Land must be kept one week apart by it self and the Hustings of Common Pleas one week by it self at the said days yet the Inrolements of the said Hust make mention only of Munday Hust of Pleas of Land IN Hust of a Plea of Land are pleaded Writs of Right Patent directed to the Sheriffs of London in which Writs there are such process by custome of the said City viz. The Tenant or Tenants at the first shall have three Summons to the Tenants delivered at three Hust of Plea of Land next following after the livery of the Writ not demanding the Tenants at any the Hust aforesaid And after the three Summons ended three Essoynes and other three Hust of Plea of Land then next following and at the next Hust after that three Essoyns if the Tenants make default Process shall be made against them by Grand Cape or Petit Cape after appearance and other Process as at the Common Law And if the Tenants appear the Demandants shall declare against the Tenants in nature of what Writ they will except certain Writs which are pleadable in the Hust of Common Pleas as shall hereafter be shewed without making protestation to sue in nature of any Writ and the Tenants shall have the view and shall be Essoyned after the view at the Common Law And shall also have the Tenants Essoyned after any appearance by the custome of the City And although one such Writ be abated after view by exception of Joyntenants or other exception dilatory and although the same Writ be restored the Tenants by the custome of the said City shall have the view in the second Writ notwithstanding the first view had And if the parties plead to Judgement the Judgement shall be given by the mouth of the Recordeâ— and six Aldermen had wont to be present at the least at every such Judgement given and every Beadle by advise of his Aldâ—â—man against every Hust of Pleas of Land shall cause to be summoned twelve men being Freeholders of the best and most sufficient of his Waâ—d to come to the Guild Hall to pass an Enquest if need be if there be so many men of heritage within the same Ward And if the parties pleading come to an Enquest then shall the Enquest be taken of landed men being Freeholders of the same Ward where the tenements are and of other three Wards nearest adjoyning to the place where the Terants are so that four men of the same Ward where the Tenants are shall be swoâ—n in the same Enquest if there be to mary And no damages by the custome of the City are recoverable in any such Writ of â—ight Patent And the â—â—quesâ— may pass the same day by such common summons of the Beadle if the parties be at Issue and the Juiors do
and if they be souâ— there after the timâ— that then not only the said dishoneâ—â— persons shall have imprisonment of the bodies after the discretion of the Mayoâ— and Aldermen but also the said Land lords Letters of the said houses shalâ— forfeit to the Guild Hall as much as they should have had for letting of the said house or should be paid by the year if the said persons or others had dwelled in the said house you shall duly enquire of offences against this Act and present them 18. Also if any Freeman against his Oath made conceal cover or colour the Goods of Forraigners by the which the King may in any wise lose or the Franchises of this City be imblemished 19. Also if any Forreigner buy and sell with any other Forreigner within this City or the Subburbs thereof any Goods or Merchandizes be forthwith forfeit to the use of the commonalty of this City 20. Also if every Freeman which receiveth or taketh the benefit and enjoyeth the Franchises of this City be continually dwelling out of the City and hath not â—e will not after his Oath made be at Scot and Lot nor partner in the charges of this City for the worship of the same City when he is duly required 21. Also if any man conceal the Goods of Orphans of this City of whom the Ward and marriage of right belongeth to the Mayor and Aldermen of this City 22. And if any Officer by colour of his Office do extortion unto any man or be maintainer of Quarrels against right or take carriage or arrest Victual unduly 23. Also if any Boteman or Feriour be dwelling in the Ward that taketh more for Botemanage or Feriage then is ordained 24. Also if any man make Purprestâ—res that is to say incroach or take of the common ground of this City by Land or by Water as in Walls Pales Stoops Grieces or Dores of Cellars oâ— in any other like within the Ward oâ— if any Porch Penthouse or Jetty be toâ— low in letting of men that ride beside or Carts that go thede forth 25. Also that Penthouses and Jeâ—ties be at the least the height of nine foot and that the Stalles be not but of two foot and a half in breadth and to be flexible or moveable that is to say to hang by Icmewes or Garnets so that they may be taken up and let down 26. Also if any common way or common course of water be foreclosed or letted that it may not have his course as it was wont to the noyance of the Ward and by whom it is done 27. Also if any Pavement be defective or too high in one place and too low in another to the disturbance of Riders and Goers thereby and Carte that go thereupon 28. Also if any Regrator or Forestaller of Victual or of any other Merchandizes which should come to this City to be sold be dwelling in this Ward a Regrator is as much to say as he that buy-up all the Victual or Merchandizes or the most part thereof when it is come to the City or the Suburbs of the same at a low price and then afterwards selleth it at his own pleasure at a high and excessive price a Forestaller is he that goeth out of the City and meeteth with the Victual and Merchandize by the way coming unto the City to be sold and there buyeth it both these be called in the Law Inimici publici patriae which is to say open Enemies to a country 29. Also if any Butcher Fishmonger Poulter Vintner Hostler Cook or sellar of Victual do sell Victual at unreasonable prizes 30. Also if any Hostler sell Hay Oats or Provender at excessive prizes taking greater gain thereby then is reasonable and lawful 31. Also if any Victualler sell any Victuals not covenable or unwholesome for mans body or else dearer then is proclaimed by the Mayor when any such Proclamation is or shall be 32. Ye shall diligently make search and inquity whether there be any Vintner Inholder Alehouse-keeper or any other person or persons whatsoever within your Ward that do use or keep in his or their house or houses any Cans Stone pots or other Measures which be unsealed and by Law not allowed to sell Beer or Ale thereby and whether they do sell any of their best Beer or Ale above a penny the quart or any small Ale or Beer above a half-penny the quart and whether any of them do sell by any Measure not sealed If there be any such you shall seize them and send them to the Guild Hall to the Chamberlains Office and present their names and faults by Indenture so oft as there shall be any occasion so to do 33. Ye shall also make search in the Shops and Houses of all the Chandlers and of all others which sell by weight or measure dwelling within your Ward and see that their Scales be not one heavier then another and that their Weights and Measures aswel Bushels as lesser Measures aswel those that they sell Sea-coales by which ought to be heaped that they be in breadth according to the new Standard sealed as all others and that all Yards and Ells that they be their just lengths and sealed that the poor and other his Majesties Subiects be not deceived And further if any do buy by one Weight or Measure and sell by others and if in your search you find any false Weights Measures or Scales ye shall seize them and send them unto the Guild-Hall to the Chamberlain and you shall also do the like if you shall find any that do sell any thing by Venice Weights contrary to the Law and his Majesties Proclamations present their Names and faults 34. Also if any Inholder bake any Bread to sell within his house and if any Baker of sower Bread bake white Bread to sell or mark not his Bread or else take more for the baking then six pence for a bushel 35. Also ye shall inquire if any house be covered otherwise then with Tile Stone Lead for peril of Fire 36. Also if any Leaper Faitour or mighty Begger be dwelling with in this Ward 37. Also if any Baker or Brewer bake or brew with Straw or any other thing which is perillous for Fire 38. Also if any mango with painted visage 39. Also if there be any man that hangeth nor out a Lantern with a Candle therein burning after the usage according to the Commandement thereupon given 40. Also if any person bring or cause to be brought to this City or the Liberties thereof to be sold or sell offer or put to saile any Tallwood Billets Faggots or other Firewood not being of the full Assize which the same ought to hold 41. Also if any Freeman of this City use to resort into the Countries near to this City and there to ingross and buy up much Billet