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A32296 Reports of special cases touching several customes and liberties of the city of London collected by Sir H. Calthrop ... ; whereunto is annexed divers ancient customes and usages of the said city of London. Calthrop, Henry, Sir, 1586-1637. 1670 (1670) Wing C311; ESTC R4851 96,584 264

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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 te●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 p●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 shal● 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
That as well Citizens as Strangers should pay and the King could not grant●it to the City son it is an imposition not allowed by the Law first against Citizens because although the Ta● may be made for the genera● good of the City yet it cannot b● imposed or taxed upon particula● persons but upon every House o● the City c. but here it is particular and personal to this part of the City Also this Dock was never repaired at the general charge of the City but by the particular War● of Baynards-Castle Also the Citizens of London shall not pay To● in any place of England and her the Dock stands upon the passage o● the City and every Wharfe is as ● Gate of the City and therefore they may as well impose a tax upon every one which goeth out of any of the Gates of the City which is unreasonable and against Law as out of this Wharfe And also here is no certain profit to the City but this taxation is farmed for one and twenty years for ten shillings a year to the City which if it were a general charge there ought to come some general benefit by it to the City It is not like to the case of Cloth Co. part 5. fol. 62. because that was for the general good of the Realm and in the furtherance of the Execution of divers Statutes but this is neither in furtherance of either Statute or common Law but rather to the prejudice of both because every Citizen in respect of his Freedome is equal to the Lord Mayor And 29. Eliz. in the Common Pleas it was ordained by the Common Councel That none should use any Sand in the City except it were taken out of the Thames and it was adjudged to be against Law and the Officer of the Mayor was committed to Prison And this Dock did heretofore belong to the Arch-bishop of Canterbury and hath ever been free also here the Assessment is unreasonable viz. to pay for every load a penny especially for Inhabitans about and neer the Dock and so he prayed that there might be no Procedendo Crook George was of the same side And he said that by the Act of Common Councel it is enacted that none shall carry c. so that by that Ordinance none shall carry a Paile of Water but he shall pay a penny for it Also the Assessment is to be levied and to continue for twenty one years together which is unreasonable and it hath been adjudged here that an Assessment levied for twenty one years for reparations of a Church was not lawful Mosley of Grays-Inne prayed for a Procedendo and said that it did not appear by the return that K●ate was a Citizen and the Judges are not to meddle with any thing which is not within the return and he said it was a good By-law founded both upon custome and prescription and he put Taverner and Cromwells Case Pasch 16. Eliz. 322. 323. Dyer where the Lord of a Mannor made a By-law that no Tenant should put his Beast into the Common before the ringing of a Bell upon pain to forfeit twelve pence and adjudged a good Ordinance and he cited Smith and Shepherds cafe 49. Eliz. where there was a prescription for through Toll adjudged to be good because it was for maintenance of High-wayes so here it is for the Weal Publique of that part of the City and for all the City and it should be a great inconvenience that this Wharfe should not pay add that all other Wharfes should pay Toll and that was one wisemans Case 42. Eliz. that Wharfaye by prescription is good and 44. Elizab. in Hankshead and Wooas Case where Toll was paid for maintenance of the Walls of Salisbury for every pack of Wooll which passed by one penny and holden to be a good imposition and the case of Gravesend where there was an imposition that every one which landed at Gravesend should pay a penny toward reparation of the Bridge and good by the better opinion of 11. H. 6. Of Fair and Market Walter was of the same side this by Law is good First it is not against the Rules of Law nor the Prerogative of the King nor the benefit of the Subfect for by the Statute of 4. H. 7. cap. 15. 16. that the City of London is conservator of the River of Thames from Stanes to Yealand in the County of Kent Also by the Statute of 28. H. 8. cap. it is ordained that the River shall not be stopped Ergo this by Law is for the better execution of those two Acts of Parliament Secondly it is a benefit to the Subject because before none could any thing there without danger but now by this means the rubbish is cleansed and a stranger shall have a quicker and safer return and the penalty upon the Cloth in the Case before cited Co. part 5. is a stronger Case then this is because Dock hath continue all need to be cleansed and if such a Tax should be for reparations of the Walls of a City it would be good As to the objection he answered that as the said Case of Hallage cited before Co. part 5. so this is a general in particular and the Tax upon the Cloth was to be paid to a particular person viz. the Chamberlain as here it is who is a General Officer for the City The Case of digging of Sand was not good because thereby a man was prohibited to use his his own inheritance Commoners may make a by Law that none shall put in his Beasts before such a day but if the by Law be that one particular man shall not put in his Beasts before such a day that would not be good but our Case is more general and so prayed for a Procedendo Mountague Recorder If this be overthrown all the Orders and Ordinance of the City should be made void and stand for nothing and he said that the very objection that a Tax could not be imposed upon Strangers was made in the Case of Hallage before Yelverton Henry The Case that Walter hath put for the cleansing of rubbish c. may be good but there is no such thing here but Tax only for landing adjurnatur The Custome of London To fine one chosen by the Commons to be Sheriff and refusing to hold RIchard Chamberlain a Citizen and Freeman of London being chosen by the Commons according to the custome of London to be one of the Sheriffs of the City of London is convented before the Major and Commonalty to take the Office upon him or otherwise to take his Oath that he is not worth ten thousand pounds upon his appearance he refuseth to take the Oath and likewise to execute the Office whereupon according to the custome of London he is fined four hundred Marks and committed to prison until such time as he enter into Bond unto the Major and Commonalty for the payment of it He becometh bound accordingly unto the Major and