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
Actions personal whatsoever by Bill as well among Merchants and Merchants for Merchandize as also between others that will plead by Process made against the parties Item the Mayor and Aldermen or the Mayor and Chamberlain of the said City take before them in the said Chamber Recognizances of Debt of those that will of what summes soever And if the day of payment be missed then he to whom the Recognizance is made out of this Record shall have execution of all the Debtors Goods and of the moyety of his Lands within the said City and it is taken as at the Common Lawes Item Pleas of Debt according to the Ordinance called the Suit of Smithfield are determinable only before the Mayor and Aldermen according as is more plainly set down in the Ordinance thereupon made Item the Assizes of Nusance are determinable by plaint before the Mayor and Aldermen and that plaint shall be served by the Sheriff the Wednesday against the Friday and then the Mayor and Aldermen ought to proceed in Plea according to that which is set down in the Act of Assize and Nusance in the said City Item the Mayor and Aldermen have alwayes used to set down penal Acts upon Victuals and for other governance of the City and of the peace according to their discretion and advice and proclaim the same Ordinance within the said City openâ—y to be kept in the Kings name and of the City upon that penalty set down and shall levie all those penalties of those which do contrary to the Ordinance aforesaid Item the Mayor and Aldermen have alwayes used and may by custome of the same City cause to come before them the offenders which are taken within the said City for Lies and false Nuses noised abroad in disturbance of the Peace Makers and Counterfeiters of false Seales and false Evidences and for other notorious deceits known to them which they shall find faulty of such malefactours by confession of the parties or by enquest and then take them and punish them by the Pillory or other chastisement by imprisonment according to their discretion Item the Mayor and Aldermen have alwayes accustomed and may by custome of the said City change Process abbridge delayes in actions personal as well before themselves as in the Sheriffs Courts and to make new Ordinances touching personal Pleas which Ordinances they understand to be reasonable and profitable for the people Item you must note that all the City of London is held of our Soveraign Lord the King in Free Burgage without the same City and of all the Lands and Tenements Rents and Services within the same City and the Suburbs of the same are well in Reversion as in Demesne are devisable by Usage of the said City so that men and women by Usage of the same City may devise their Tenements Rents and Reversions within the said City and Suburbs of the same to those whom they will and of what Estate they will and they may also devise new rent to be taken of the same their Tenants in such sort as best shall seem unto them by their Testament and by their last Will and those which are Freemen of the same City may devise their Tenements to Mortmain as appeareth by the Kings Charter to that effect made Item He which holdeth Tenements joyntly with others may devise that which belongeth to him without any other separation but Infants within age can make no devise nor woman under covert barn cannnot devise their Tenements by leave of their Husbands nor in any other sort during the coverture 49. 7. 325. per. Cur. Also the Husband cannot devise Tenements to his Wife for any higher Estate then for term of life of his Wife neither can the Wife claim any further Estate upon pain of losing the whole neither can the Husband devise the Tenements in the right of his Wife nor the Tenements which the wife and the husband have joyntly purchased but if the Husband and Wife have Tenements joyntly to them and the Heirs of the Husband the same Husband may devise the Reversion and all the Testaments by which any Tenements are divised may be inrolled in the Hust of Record at the suit of any which may take advantage by the same Testaments and the Testaments which are so to be inrolled shall be brought or caused to be shewn before the Mayor and Aldermen in full Hust and there the said Will shall be proclaimed by the Serjeant and then proved by two honest men well known which shall be sworn and examined severally of all the circumstances of the said Will and of the Estate of the Testator and of his Seal and if the proofs be found good and true and agreeing then shall the same Will be inrolled upon Record in the same Hust and the Fee shall be paid for the Inrolment and no Testament nuncupative nor other Testament may be inrolled of Recod unless the Seal of the party be at the same Will but Wills that may be found good and true are effectual albeit they are not inrolled of Record Item Testaments within the said City ought by custome of the same City to be adjudged effectual and Executors have respect to the Wills of the Testators albeit the words of such Wills be defective or not accordidg to the Common Law Item Where Reversions or Rents be devised by Will inrolled in the Hust of Record the same Reversions and Rents after the death of the Testator are so Executed that those to whom such rents are devised may distrain for the rent and make avowry and those in reversion may sue a Writ of Waste at their will without any Attornment of the Tenants and may plead by the same Inrolment if need be although they have not the same Testament and the same custome taketh place for Deeds of Land inrolled in the Hust of Record and such Inrolments have been alwayes used so that the Wills are proclaimed and proved in full Hust as is aforesaid and Deeds indented and other Writings sealed may be accepted and the knowledging and confession of women may be received before the Mayor and one Alderman or before the Recorder and one Alderman or before two Aldermen for need as well out of the Court as in so that the same Charters Indentures and other writings so acknowledged be afterwards entred and inrolled in any Hust and the Fees paid as the Order is Item where a man hath devised by his Will enrolled certain rent to be taken of his Tenants within the said City without a cause of distress yet by custome of the said City he to whom the devise is made may distrein and avow the taking for the rent behind and in the same sort it shall be done for Amerciaments Rents called quit-rents within the said City Item the Mayor and Aldermen which are for the time being by custome of the same City shall have the Wards and marrying of all the Orphans of the said City after the death of their
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
away or otherwise occupy or dispose the said Gravel Sand or other thing at their freeliberty and pleasure And that all Paviers Bricklayers Tilers Masons and all other that shall occupy Sand or Gravel shall endeavour themselves with all their diligence to occupy the said Sand or Gravel and none other paying for the same reasonably as they should and ought to pay for other Sand or Gravel digged out of other mens Grounds about the said City which after is filled again with much filthy things to the great infection of the Inhabitants of the said City and all other repairing unto the same And that further humble Suit may be made to the Kings Highness that all persons having Lands or Tenements along the said River side upon certain pain by his Highness and the Lords of his most Honourable Councel to be limited shall well and sufficiently repair and maintain all the Walls and Banks adjoyning unto their said Lands that so the Water may not nor shall break in upon the same and the same to be continued till the time that the said noble River be brought again to his old course and former Estate And that strong Grates of Iron along the said Water-side and also by the Street-side where any Watercourse is had into the said Thames be made by the Inhabitants of every Ward so along the said Water as of old time hath been accustomed And that every Grate be in height four and twenty inches at the least or more as the place shall need and in breadth one from another one inch and the same to be done with all expedition and speed And if the occupiers of the said Lands and Tenements make default contrary to the Ordinance asoresaid or else if any person or persons in great Rains and other times sweep their soylage or filth of their houses into the Channel and the same after is conveighed into the Thames every person so offending shall forfeit for every such default twenty pence and that upon complaint to be made to any Constable next adjoyning to the said place where any such default shall be found it shall be lawful for the said Constable or his sufficient Deputy for the time being from time to time distrain for the same offence And to retain the same irreplegiable and like Law to be observed and kept And like penalty to be paid for every person that burn Rushes and Straw in their houses or wash in the common Streets or Lanes and to be recovered as aforesaid and the one moyety thereof to be to the Mayor and Commonalty and the other moyety to be divided between the said Constable that taketh pain and the party finder of the said default And if the Constable or his Deputy refuse to do his duty according to the true meaning of this Act that then the Constable or his Deputy which shall so refuse to his duty as aforesaid shall forfeit and pay for every time so offending three shillings four pence And the same penalty of the said Constable to be recovered and obtained by distress irreplegiable to be taken by any of the Officers of the Chamber of London to the use of the Mayor and Commonalty of London And further that no person or persons having any Wharfe or House by the said Water-side make not their Laystalles nigh to the River aforesaid except only the common Laystalles where the Common Rakets of this City use to repose and lay all their Soylage to be carried away by them with their Dung-boats And that the said Rakets shall lay their said Dung carried in their Dung-boats to such convenient place or places as shall be appointed by the Lord Mayor of London for the time being with the advice of his Brethren the Aldermen of the same and to no other place or places upon pain to forfeit for every such default five pound to be recovered in any of the Kings Courts within the City of London by Bill Plaint Moyety of Debt or information by any person that will or shall pursue for the same the one Moyety thereof to be unto the Mayor and Commonalty of London and the other Moyety to him or them that will or shall pursue for the same in which Actions or Suits no wager of Law nor Essoygn shall be allowed The Oath of the Constables within the City of London YE shall swear that ye shall keep the Peace of our Soveraign Lord the King well and lawfully after your power And ye shall Arrest all them that make Contect Riot Debate or Afray in breaking of the said Peace and lead them to the House or the Compter of one of the Sheriffs And if ye be withstood by strength of misdooers ye shall rear on them an Out-cry and pursue them from Street to Street and from Ward to Ward till they be Arrested and ye shall search at all times when ye be required by the Scavengers or Beadles the common noysance of your Ward And the Beadle and Raker you shall help to reare and gather their Sallery and Quarterage if ye be thereunto by them required And if any thing be done within your Ward against the Ordinance of this City such defaults as ye shall find there done ye shall them present to the Mayor and Ministers of the City and if ye be letted by any person or persons that ye may not duly do your Office ye shall certifie the Mayor and Councel of the City of the Name or Names of him or them that so let you Ye shall also swear that during the time that ye shall stand in the Office and occupy the Room of a Constable ye shall once at the least every moneth certifie and shew to one of the Clarks of the Mayors Court and in the same Court as well the Names as Sur-names of all Free men which ye shall know to be deceased within the moneth in the Parish wherein ye be inhabited as also the Names and Sur-names of all the Children of the said Free-men so deceased being Orphans of this City And thus you shall not leave to do as God you help c. God save the King The Oath of the Scavengers YE shall swear that ye shall diligently over-see that the Pavements within your Ward be well and sufficiently repaired and not made too high in noysance of your Neighbours and that the Wayes Streets Lanes be cleansed of Dung all manner of filth for the honesty of this City And that all the Chimnies Furnaces and Reredoes be of Stone sufficiently and defensively made against peril of Fire And if ye find any the contrary ye shall shew it to the Alderman of the Ward so that the Alderman may ordain for the amendment thereof And thus ye shall do as God you help God save the King The Oath of every Freeman of this City of London YE shall swear that ye shall be good and true to our Soveraign Lord King Charls and to the Heirs of our said Soveraign Lord the King Obeysant and
King Edw. the 3. bereaving the King and Commonwealth of these great benefits and commodities is against the Law and so ought to be repealed And day was given accordingly to put in their Plea At which time many of the old Merchants-Adventurers being willing that trial should be made whether the benefit intended unto the Commonwealth might be compassed did shew to their obedience unto the King and desire of the good of their Country Surrender up their Patent into the hands of his Majesty since which time it being found by experience that the project had not that success which they expected and likewise Cloth and Wooll lay dead because there was no vent for them abroad The King according to his power reserved unto him in his Patent by which he erected and created the new Company of Merchants Adventurers of London did make repeal and revocation of the said New Patent and new Company and did redeliver unto the old Merchants their Patent confirming it and likewise by another Charter did enlarge the Liberties and Priviledges of the old Merchants by reason of which Grace of the King the old Company of Merchants-Adventurers of England are reestablished in that estate wherein they formerly were and they do now trade again as formerly they did to the great content of the Subject and benefit of the King and Country Certifying Indictments upon Certioraries IOhn Forner Iohn Evans and divers others being Indicted before Sir Thomas Hayes Lord Mayor of London Sir Henry Mountague Serjeant unto the King and Recorder of London Sir Thomas Lowe and divers others by vertue of a Commission granted unto them a Certiorari was directed unto them as Justices of Peace out of the Kings Bench for the certifying the said Indictment upon which Certiorari no return was made whereupon a second Certiorari was awarded unto the said Commissioners commanding them to certifie the said Indictment upon a pain upon which Certiorari a return was made in this manner That is to say that King H. 6. in the 23. year of his Reign by his Letters Patents bearing the same date did grant unto the Mayor Aldermen and Sheriffs of London that they should not be compelled upon any Writ directed unto them to certifie the Indictments themselves taken before them but only the Tenors of them the which they have done accordingly and Exception being taken unto this Return for the insufficiency of it it was resolved by Sir Edward Cook Chief Justice of the Kings Bench Sir Iohn Crook Sir Iohn Doddridg and Sir Robert Haughton that the return upon the reasons hereafter following was insufficient For first the Letters Patents being granted unto them by the name of the Mayor Aldermen and Sheriffs of the City of London warranteth only the not certifying of Indictments taken before them as Mayor Aldermen and Sheriffs of London and where the Writ is directed unto them by that name and they do not excuse them in Case where the Writ is directed unto them as Justices of Peace and where the Indictments are taken before them as Justices of Peace by virtue of the Kings Commission And howsoever the Mayor and Aldermen are Justices of Peace by Charter yet insomuch that they are distinct powers return made by them by the name of Mayor and Aldermen where the Writ is directed unto them as Justices of Peace will not be good Secondly there being a Resumption made by Act of Parliament in 28. H. 6. whereby all Lands Tenements Grants Rent and Fees granted since the first day of his Reign were resumed the Letters Patents made in 23. H. 6. unto the Mayor and Commonalty are annihilated and made void and so no hold may be taken of them and the Statute made in 1. Edw. 4. cap. 1. only confirmes those priviledges not heretofore revoked and repealed by Act of Parliament or otherwise and howsoever there be a Charter made by H. 7. in the first year of his Reign whereby restitution was granted of this priviledge yet no advantage may be taken of it because it was not spoken of upon the return and the Court may not intend it Thirdly the Letters Patents of the King being the sole ground and foundation to make the return good are not sufficiently returned unto the Court insomuch that it was said upon the return only that the King by his Letters Patents did grant unto the Mayor Commonalty and Sheriffs of London that they should not be compelled to certifie the Indictments themselves but it doth not appear that they were sealed with the Grand Seal and if they were not sealed with that Seal the Letters Patents may not be of any validity in Law howsoever they were sealed with the Exchequer Seal or Dutchy Seal in respect of which they may well be called the Letters Pattents of the King Fourthly the use hath alwayes been to remove Indictments and the Record of them upon a Certiorari awarded out of the Kings Bench and there was never any denial made of it before this time and in 5. Ed. 6. where a Certiorari was directed unto them for the removing of an Indictment of a Woman which was Indicted for being a common Whore the Indictment was certified in obedience unto the Writ although in the end of the return they shewed their Charter and prayed that it might be remanded because it was an Indictment only warrantable by the custome of the City and not by the Common Law And the Court was of opinion in the return at the Bar to have imposed a Fine and to have awarded a third Certiorari but it was stayed and the second return was amended Concerning Orphans Portions THe custome of London is that if any Freeman deviseth and or other Legacies of goods unto an Orphan that then the Mayor and Aldermen have used to take the profits of the Land and to have the disposition of the Legacies until such time as the Legatees shall attain unto the age of twenty one years or otherwise being a woman should be married and if the disposition of the profits of the Lands or of the personal Legacies were declared by the Testator in his Will that then the Mayor and Aldermen have used time out of mind of man to convent the person trusted by the Will of the Testator before them and to compel him to find Sureties for the true performance of the Legacies according to the Law of the Realm and the Will of the Testator and if they refuse to find Sureties then it is lawful to imprison them until they find Sureties The Widow of a Freeman of London dwelling in Middlesex bequeathed a Legacy of a thousand pound unto her Daughter after all Debts and Legacies paid and upon condition that she should not marry without the assent of her Executor and maketh a Freeman her Executor and dieth The Executor is convented before the Court of Mayor and Aldermen and required to put in Sureties unto the Chamberlain of London according to the
shall take or receive any manner of Fine or Fines for the concealment and discharging of any of the offences afore recited but truly present the same offences and every of them according to their Oaths upon pain of imprisonment by the discretion of the Lord Mayor and Aldermen of the said City for the time being Provided always and be it enacted by the authority aforesaid that it shall be lawful for all and every of the said Inquests to take and receive towards the charges of their Fire and Candles and other necessaries during the time of their said Session all and every such sums of money as any honest person or persons of their free will and benevolent mind will give and offer unto them and when they have made their said presentments to go and assemble themselves together for their Recreation and solace where they shall think it good and there not only to bestow and spend the twenty shillings which every Alderman within his Ward according to a certain Order lately taken shall yearly give unto them at the time of the delivery of their said Presentments towards their said charges in this behalf but also the residue of the said money received and gathered as it is aforesaid of the Benevolence of their said loving Friends if any such residue shall fortune to remain Any clause or Article in this present Act contained to the contrary notwithstanding Not failing hereof as ye tender the Common Weal of this City and advancement of good Justice and as ye will answer for the contrary at your uttermost peril The Articles of the charge of the Ward-mote Inquest 1. YE shall swear that ye shall truly inquire if the Peace of the King our Soveraign Lord be not kept as it ought to be and in whose default and by whom it is broken or disturbed 2. Also if there dwell any man within the Ward that is outlawed or indited of Treason or Fellony or be any receiver of Traitors or Fellons 3. Also ye shall inquire and truly present all the offences and defaults done by any person or persons within the River of Thames according to the intent and purport of an Act made by our late Soveraign Lord King Edward the sixth in his high Court of Parliament and also of divers other things ordained by Act of Common Councel of this City for the redress and amendment of the said River which as now is in great decay and ruine and will be in short time past all remedy if high and substantial provision and great help be not had with all speed and diligence possible as more plainly appeareth in the said Act of Parliament and the said Act of Common Councel of this City 4. Also if any manner of person make Congregation or be Receiver or Garherer of evil companies 5. Also if any man be a common Riotor or a Barrator walking by Nightertale without light against the rule and custome of this City 6. Also if there be any man within this Ward that will not help aid ne succour the Constables Beadle and other Ministers of this City in keeping of the Peace and Arrest the evil dooers with rearing of Hue and Cry 7. Also if there be any Huckster of Ale and Beer that commonly useth to receive any Apprentices Servants Artificers or Labourers that commonly use to play at the Dice Cards or Tables contrary to the form of the Statute in that Case ordained and provided 8. Also if there be any Inholder Taverner Brewer Huckster or other Victualer that hold open their Houses after the hour limited by the Mayor 9. Also if any Parish Clark do ring the Bell called the Curfue Bell after Curfue rungen at the Churches of Bow Barking Church Saint Brides and Saint Gile's without Cripplegate 10. Also ye shall inquire if any Putour that is to say Man-baud or Woman-baud common Hazerdours Contectour maintainer of Quarrels Champartours or Embracers of Inquests or other common misdoers be dwelling within this Ward and present their Names 11. Also if any Baud common Strumpet common Adulterer Witch or common Scold be dwelling within this Ward 12. Also if there be any House wherein is kept and holden any Hot-house or Sweating-house for ease and health of men to the which be resorting or conversant any Strumpers or women of evil Name or Fame or if there be any Hothouse or Sweating ordained for women to the which is any common recourse of young men or other persons of evil fame and suspect conditions 13. Also if there be any such persons that keep or hold any such Hot-houses either for men or women and have found no surety to the Chamberlain for their good and honest behaviour according to the Laws of this City and lodge any manner of person by night contrary to the ordinance thereof made by the which he or they shall forfeit oâ— twenty pounds to the Chamber if they do the contrary 14. Also if any manner of person cast or lay Dung Ordure Rubbish Seacole-dust Rushes or any other thing noiant in the River of Thames Walbrook Flett or other Ditches of this City or in the open Streets Ways or Lanes within this City 15. Also if any person in or after a great Rain falleth or at any other time sweep any Dung Ordure Rubbish Rushes Seacole-dust or any other thing noyant down into the Channel of any Street or Lane whereby the common course there is let and the same things noyant driven down into the said water of Thames 16. Also if any manner of person nourish or keep Hogges Oxen Kine Ducks or any Beasts within this Ward to the greivance and Disease of their Neighbours 17. Also where afore this time it is ordained and enacted as hereafter followeth Item for to eschew the evils of misgoverned persons that dayly when they be indebted in one Ward fly into another It is ordained by the Mayor and Aldermen that as soon as a man or woman suspect first do come to dwell within any house in any Ward within the City the Constables Beadles or oother Officers of the same shall be charged by their Oaths at the general Court to inquire and espie from whence they come And if they find by their own confession or by the Record of any of the Books of any Alderman of the City that they be Indited or cast of evil noyous life and will not find surely for their good abeating and honest governance to the Alderman for the time being that then they shall not dwell there from thenceforth but shall be warned to aviod within three or four dayes or more or less after as it shall be seen to the Alderman of the Waâ— for the time being and that the Land loâ— that letteth the house or his Attorney shall be also warned to make them â—â— avoid out of his house aforesaid with the said time limited by the Alderman
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
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
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