A Brief DECLARATION For What manner of special Nuisance concerning private dwelling Houses, a man may have his remedy Assize, or other Action as the Case requires. Unfolded in the Arguments, and opinions of four famous Sages of the Common Law; together with the power, and extent of customs in Cities, Towns, and Corporations, concerning the same: together with the determination of the Law, concerning the commodity, and use of Houses, and their appurtenances. Whereunto is added, The justices of Assize their Opinion, concerning statute law for Parishes, and the power of justices of Peace, Churchwardens, and Constables; and to know what they are to do concerning Bastards borne in their Parishes, relief of the Poor, and providing for poor Children, what remedy for the same. LONDON, Printed for WILLIAM COOK, and are to be sold at his shop, near Furnivals-inn gate in Holborn. 1636. The Arguments, and opinions of four famous Sages of the Common Law touching the power, and extent of customs of Cities, Towns, Corporations, and Inheritances, together with the determination of the Law concerning the commodity, and use of Houses with their appurtenances, and wherein an action may be maintaineable concerning the same, and wherein not. A Man hath a house, Mr. Mounsons' argument. and the windows thereof open into an others man's house, whether he may build a house, so as to stop up the same lights, or not: concerning which, I purpose to show you my opinion, and likewise to show unto you the necessity and use of Houses. The first, and chief use of an house is to defend man from the extremity of the wind, and weather. And by the receipt of comfortable light, and wholesome air, into the same to preserve man's body in health. Therefore who so taketh from man so great a commodity as that which preserveth man's health in his castle, or house, doth in a manner as great wrong as if he deseised him altogether of his . As if I have a Mill, and another will turn away the water running to the same, I may bring an Assize against him. So, if I have a Pipe, which conveyeth water unto my house through the ground of another man, and he will cut my pipe, I shall have an action against him: In like manner who so stoppeth my light, is the cause that no air can enter into my house, without which no man can live, and a house lacking light, is rather a dungeon then a house. If one who hath a horrible sickness be in my house, and will not departed, an action will lie against him, and yet he taketh not any air from me, but infecteth that which I have. So if one cast filth near unto my house, I may bring my action against him. If a man build so high that his house droppeth on my house, I shall have remedy against him. And though light and air be common, yet if by any man's own act they may be made private, they may not then be taken from him, and if they be, he shall not be without remedy. This appeareth by Hawks, and Dear, which be feraenaturae, yet if by man's industry they are made tame, the owner will thereby gain property in them: but peradventure it will be said, The soil is his own, and it is Damnum absque injuria, what then? Though it be his own, he must so use it, that he hurt not his Neighbour. As if a man had a Pond of water, and will suffer it to drown his neighbour's land, he shall have remedy against him. If a man be bound to repair the banks of the sea that it drown not the land adjoining, and so doth not, but the land is drowned; an action lieth against him. You may perhaps say there is plenty of light remaining, this notwithstanding our action will lie very well, for the taking away, or impairing part thereof. As an action was brought quare arctavit, and 2. H. 4. where a man had a way and another ploughed the same, and it was thought there that an action would very well lie, and yet the way remained. If I have common in your Land, and you will plough part of the same Land, I shall very well maintain an action against you. So it is of Common of Estovers, and piscary: And yet in all these cases, the whole is not gone, but some part remaineth. This proveth that though he hath not stopped the whole light of the house, yet for that he hath stopped parcel, an action is very well maintainable, but if you had said, that on the same side there had been plenty of light, it might have better stood with reason. As touching your custom, whereby a man may stop his neighbour's lights: I think this is rather Malus usus, than any custom: for as I have learned of Mr. Hales, a custom is thus defined, Consuetudo est jus non scriptum nunquam repugnans rationi naturali, and therefore if any custom swerve from reason, and natural equity, it is but malus usus; and for that to be abolished, for by entendment, and consideration of the law, and reason, every custom had a reasonable beginning, as that case in 35. H. 6. of selling jewels in Cheapside may have a reasonable beginning. In like manner the custom of gavelkind, that Sons shall equally inherit the Lands of their Fathers. Such is the custom, that if a woman marry without licence, that she shall lose her dowry. So is it also of the custom that one town may enter Common with another. All these, and such like may well be thought to have a reasonable beginning. Otherwise it is, where by intendment their beginning cannot be thought reasonable. As that a man shall pay relief, when that he shall marry his daughter. And as the custom is in Mich. 35. H. 6. fol. 31. of the pledging of goods: So it is of the custom, to arrest a man before the day of payment. In like sort in 2. H. 4. that the tenant shall not put his beasts into the Common, before the Lord hath put in his, which peradventure he will never do, so it is 10. H. 6. If the Major of a town will prescribe to impound all beasts which shall be damage fesonet in his own pound, and there to keep them till he be satisfied as he list, or if he prescribe to use, and occupy the same beasts howsoever he pleaseth. In 2. R. 3. and 22. E. 4. one demanded whether it were a good custom, that if the Mayor of a town suspect a man, that he may arrest and imprison him 3. days: this was thought no good custom, but to be most abhorring, and dissonant from reason. And therefore forasmuch as houses be necessary, and cannot be without light, and air, their beginning was lawful, necessary, and reasonable, but that a man might stop up his neighbour's lights, was never necessary, neither had lawful, or reasonable beginning, neither at any time obtained the force of a law, or custom, for in K. Henry the 2. his time, it was but a constitution in London, and not any custom, or law; and therefore never allowed, or confirmed by Parliament, for Magna Charta Ca 9 did confirm such old liberties and customs as London had at that time: And therefore, if this were not any law or custom at the time of the making of that statute, it neither was nor could be confirmed by the same, for the more general Statutes shall have a reasonable construction. As the Statute that doth prohibit maintenance, shall have a construction, for lawful maintenance is not thereby prohibited. The like law is that where it is said, that a fine shall be a Bar to a feme coverte, this is to be understood of a good, and lawful fine, so this confirmation by Parliament of customs, and liberties of London, shall be intended a confirmation of all their good, and lawful customs, and not of unreasonable, or wrongful usage, such as in 27. H. 6. if the house of tenant for term of years decay, that then he shall pay no rent, etc. But if your custom were then good, and so confirmed by Parliament, yet the words thereof may not be stretched to our case, the words are visus fenestrarum, and the Civil law saith, a man may estop visum, and not lumen, lumen est descendens de coelo, visus est meus prospectus ad terram. And our Law saith, petit visum terrae, And visus and lumen differ. But Sir you cannot in this case defend yourself both by the Common law and custom too. For you ought absolutely to trust to the one of them, and if you had plead thus by way of Bar, your plea without all doubt would have been double. As if a man will plead affeafement with warrenty, and rely not on the warrenty, this plea is double. So in the case at the Bar, you plead both the common Law, and the custom, and your plea is double, and therefore for all these causes I think the plaintiff ought to recover. Mr. Plowden. Albeit it hath been alleged, Mr. Plowdens' Argument. that the windows have been time out of memory there, and the lights ancient, it is all one, as if the house had been built at this day. Put the case there is a pale betwixt your ground and mine, and you build to the uttermost part of mine, by your first building I am bridled and stopped of my building; And in the Country who so maketh a hedge, will make a dike in the uttermost part upon his own land. So he that maketh a Park, will leave ground out of the same compass without the pale for this Keeper to walk about it, for there he may better hear if any body be there within, then if he were within himself, And this is called free-bownd. If a man build his house so high that it droppeth on mine, an action will very well lie, for there is a manifest hurt, and wrong done unto me: but 22. H. 6. where the Prior of St. Edees' had three Mills, an other man built an other by them, he could not have any remedy for this. But if any of his tenants which held of him by grinding at his Mill grind at the new Mill, the Prior may have an action against him, for he whose the land is, might use the same for his greatest commodity, and gain. If a man cut down Trees which fall upon an other man's land, he shall have his action; otherwise it is, if a Tree fall by reason of wind. So in our case: of our own soil we may make the best, as in 12. H. 8. a man had a pond, and let the same run out, whereby the next dwellers land was drowned, this was but damnum absque injuria, wherefore no action would lie. In 4. E. 3. a man had a Lime kilne, which destroyed the Fruit of his neighbour, who maintained his action, for in that case this taketh place, Sic. utere, tuo, ut alienum non laedas; And Mr. rastal saith in his book, if a man have a Dye-house, and the water which runneth to his house, killeth the Fish of another, an action lieth. If a man cast filth under my walls, I may punish him for it. And in the 46. E. 3. The Prior of Buckhurst had a sluice, whereby Salmon came in, and one stopped the same, wherefore he had his action. Like whereas one cutteth away the water, which runneth to my Mill, for the proof whereof Mr. Reynolds put a case out of 19 E. 3. where an Assize was brought for two things, one because he had levied a house to stop the light; an other, because he could not repair the same: There it was thought that no action would lie, because he might have remedied, this in the beginning when he built his house. And the case was in 7. Edw. 3. in the last point, and there the Lawyer said, that he might have left space enough in his own Land, and the party was nonsuited. Horwoods' report hath two verses, Saepe recordare si debes adificare poteris stare cum came vis reparare. But you aid yourself with a prescription that you have had light time out of mind, this is no good prescription, for a prescription must be against some party. But this is against God; You say further, that the other had no house, which is not good, for a prescription must be in the affirmative, and this is in the negative, and so saith Pris●t in 22. H. 6. that a man cannot prescribe in the not having a house. But admitting it to be the usage. An usage is general, and a constitution special in 12. E. 4. A diversity is taken between usage, and custom, for that a custom is a thing disagreeing from the Common law, but not contrary, & also it would not be beautiful that Cities should have any void places, in them, and it would be most honourable that they should be populous. And therefore was there a Statute made 27. H. 8. caprim●, that there should not be any void places in diverse Cities, also houses are necessary for the sustenance of man, in 22. E. 4. there is a custom that if a man plough his Land, he might turn his plough upon an other man's land: and this was thought a good custom for the favour of Tillage, much more our case of Building is to be favoured. 8. E. 4. the custom is, that a Fish-man may drive stakes into an other man's ground to dry his Nets, which was allowed for a very good custom. Likewise 15. E. 2. one prescribed that when the Hay was carried out of a certain Meadow, that he should occupy the land until our Lady day, which was allowed by the Court. So a man may prescribe to have Common of estovers in another man's Land, and to cut them down himself. The Lord in ancient demesme prescribed, that if the villain of another Lord remained a year and a day in ancient demesme, that then it shall not be lawful for his Lord to take him from thence. In like manner, one may prescribe to have gravel in my Land, and all these customs stand very well with reason. If I have a way, and another man blow up the same, I cannot have an action on my case, but I must have an Assize and to is the book in 2. H. 4. Mr. Fleetwood saith that all customs must stand with reason. And in 5. E. 4. it is said, that albeit all customs are confirmed, yet they must be examined, by the rule of reason, as the custom of gavelkind standeth with reason. The Statute that giveth a writ of ravishment, de Gurd to Guarden in soccage shall be extended to the Mayor, and Aldermen of London, to give them like remedy which was confirmed by 1. E. 3. Also the Statute that no man shall give lands in Mortamaine, yet Citizens and Freemen of London may give lands in Mortmain by their custom, which custom is also confirmed by act of Parliament. As for the doubleness of the plea I will not say any thing, for that it is not any justification, but only for to diminish the damages, if perhaps it be found against us. And therefore upon the whole matter, I think the plaintiff ought not to recover in this action. I think the contrary, and first I will consider these four things. First, whether such buildings, ex opposito, Mr. Wrayes Argument. be a nuisance by the Common law. Secondly, whether this custom be a good custom. Thirdly, whether such kind of buildings be for the beautifying of the City. Fourthly, whether the said confirmation by Parliament make this custom good, or not. As touching the first matter, the nuisance which is supposed to be in stopping up of windows in the South part of an house, I conceive is a nuisance by the Common law, for by the Common law, one shall not hurt the Freehold of another, and no greater hurt, grievance, or damage can be done to any man's Freehold, then to take away the light and air thereof, which is comfortable, & commodious for him, for when this light, and air are taken from him, his house remaineth as a dungeon. And diverse cases there be where a man taketh away from another not the thing itself, but the commodity of the thing, and for that he shall have his remedy by action: as if I have a water running through your ground unto my Mill, and you will turn away the course thereof, or stop the same; I may bring an assize 9 E. 3. pla. 19 yet I will confess, that if another build a Mill by my Mill, I may not have any action, as 22. H. 6. for it is damnum absque injuria. So it is in 2. H. 4. in the case of the School cadem ratio. But if any aught to grind at my Mill, and another will hinder them, an action lieth 9 H. 6. fo. 45. where the Pryer of St. Bartall had a Fair, and one interrupted the comers thereto, whereby his Toll was impaired, and yet not his Fair, but the profit of his Fair taken away, and he had remedy. So in our case he hath not meddled with our Freehold, and yet hath he hurt our Freehold. So in 4. E. 2.13. E. 3. If I have a Fair, and the King will grant another, if my Fair be impaired by this I shall have an action, and so of a Ferry, and the reason is, because a man is compellable to maintain his Fair, Ferry, or Market, and if he do not, it is punishable in a Leete. But of a School, otherwise it is, for that a man is not bound to maintain it, but Houses in Cities men are bound to maintain, and that by Statute, otherwise they may in cur the punishment. 18. E. 3. one built his house so high over mine, that the rain dropped from his upon mine, and it was thought there that an action was maintainable, yet that hurt might have been amended à fortiori in our case where the hurt is perpetual, and cannot be amended. And if for a way an action lieth, as it is in the 42 E. 3. much more for an hurt to our health, which above all things men have regard unto, for the proof whereof we have a writ in the Register de leproso amovendo. Likewise the selling of corrupt meat, whereby men's bodies may sustain harm, is punishable in a Leete, which proveth that the Common law hath regard unto the health, and welfare of every private man. There is a case in 4. E. 3. lib. ass. pla 3. where one built a Lime-kilne, and his neighbour was annoyed by the smoke thereof, and had his remedy. If a man shall be punished for smoke, which may be avoided, and dureth but at times, what shall we think of the taking away of light, and air, which cannot be amended, but remaineth a continual and perpetual nuisance? as for the cases in 19 E. 3. which hath been avouched so oft to make strongly against us, I take them to be one case, for so much as the justices which speak in one place, speak also in the other place; and last of all in both cases, the case was thus, an assize of nuisance was brought, and the Plaintiff counted how the defendant had levied a house, so that thereby his light was stopped up, and that he could not so well come to his house as he did before, also that he could not repair his house so well as he could before. Herebe said, as to the light be it a nuisance, such a one as it is. Tiel. quel. for the repairing none, for when a man buildeth, he must leave so much space on his own ground that he may come to repair his house, and if he had thought that stopping of his light had been no nuisance he would not have said, be it a nuisance Tiel quel. but have said as he did to the other case of repairing, it is no nuisance. And therefore for the first matter, I think this to be a nuisance by the Common law. As touching the second matter, whether this custom be a good custom or not, and I think the same is no good custom: For consuetudo est in etc. ut supra, a custom is not against law, and reason, but this custom of yours is against reason, and is in effect, as if a man should take my life from me, for these be the instruments to maintain, and preserve man's life, and the law saith, sic utere tuo, ut alienum non laedas, therefore a custom against this precept, is malus usus, and therefore abolendus, as the case in 21. E. 4. It the King's Bailiff or any other Bailiff distrain Cattles, and bring them to the Lords Pound, and if the owner did not within three days agree with the Lord, that then he should lose bis Cattles, this was thought unreasonable and not allowed for any good custom. So in 9 H. 6. where there the Lord of a Leet would have prescribed to have all the waste ground, but he could not, because it was against reason, that he who had nothing in the Land should have the wastes. Like unto the said case in the 35. H. 6. fo. 31. of pledging of goods, and such is that case in 43. E. 3. where the Lord of the Mamnor would have prescribed, that none of his Tenants should marry their daughters without his licence; this custom was thought to be against all equity, and reason. In 13 E. 3. in a dum fuit infra aetatem, one would have prescribed, that if the Plaintiff could number 12 d. he might alien his land by the custom: this is not a reasonable custom, for a man may be able to number 12 d. and yet not have discretion enough to alien his Land. So it is likewise against natural reason, that one should bar me of my light, and air, without which I cannot live, and therefore these things be of necessity. Also it is against the Law that one should meddle with the Freehold of another man, unless it be for a Commonwealth, as 8. E. 4. where one justified the setting in of stakes for to dry his nets, and likewise in the 11. H. 2. where one brought an action for taking or driving his Hogs, the Defendant justified, because the custom of the City was, that if any man's Hogs came into the City, and upon warning given to the owners to keep them out: if they came again, that then they shall be forfeited. This is a reasonable custom, because Swine are beasts that may cause diseases to be in a City, and therefore it is against the Commonwealth, in 22. E. 4. Where it is said; that a man may turn his plough upon another man's land, that is a good custom, for by this means no land shall be unsowne, which is for the maintenance of Tillage, and the benefit of the Commonwealth. But this your custom is but a private custom, and not for the maintenance of the Commonwealth, and therefore is like unto the custom in 43. E. 3. that if the tenant cease to do his custom, the Lord may enter, this custom standeth not with the Common law, neither with the Statute which putteth the Lord to his cessavit, and giveth him not any entry. So it is to be thought of the custom in 2. H. 4. that the Tenants shall not put their beasts into the Common before the Lord hath put in his, which peradventure he will never do, so that the Tenants shall never have their Common. So it is if a man prescribe that the alienation of the Husband of the Lands of his Wife shall be good without examination of her. Like law of the Custom in 43. E. 3. that if any goods bee waned in any manner, and if any man take them, that then it shall be lawful for me to distrain, and detain the distress until such time as I am satisfied: by these cases rehearsed it is manifest, and clear that all usages against natural reason, and the Common law of this Realm, are not customs, but evil usages, and not to be allowed. So in our case a custom to take away a man's light, and air, preservers of health, must needs be malus usus, and therefore aught to be taken away; For good usages stand with reason, and as Bracton saith, must give place to reason, and law. But you will say, that the Law of your City is such: I say, if it stand not with reason, and law, it shall not be allowed. As 10. E. 3. in an appeal brought by a Citizen, the defendant waged battle, the Citizen said the custom of London is such, that a stranger should not wage battle against a Citizen, this was thought no good custom, nor sufficient to deprive a man of a benefit, which the law giveth him. And so in 27. H. 6. in an action of debt upon a lease for years, the defendant said that the custom was, that the plaintiff should repair the houses, and if not, that the defendant should pay no rent, this was thought to be no custom allowable. For the third point, this is no beautifying at all to the City. In our case Mr. Hails his house is an ancient house, and therefore against reason that by latter building, the commodity, and use of the same should be taken away. You say also that it is a thing honourable to have buildings in Cities; This I grant, and I think no man will deny it: but by building of one, to impair a better house, this is not any beautifying, or honour at all to a City, but rather the contrary. For the fourth matter, if the custom be not good, the confirmation cannot make it good: for as I take the law, the common learning is, that a confirmation cannot make a void thing good: as for a confirmation est firmum facere id quod non firmum fuit ante, sed fuit tamen 26. H. 8. If an Infant grant an advouson, and at his full age confirmeth the same, by this confirmation nothing is wrought. So it is in the case of 33. E. 3. where the lease for years was made by a Bishop, and he died before the years expired, the successor confirmeth the said lease, and nihiloperatur. Likewise in 39 H. 6. the King granted an advouson to one, and after granted the Manor with the advouson to another, and after the confirmation is made, yet the advouson passeth not. But where the Statute limitteth, that men may devise unto corporations in Mortemaine, yet if they will devise to any that is not a Corporation, it is without warrant: And also albeit a man may not wage his law in London, yet if at the Common law, an action be brought against him, he may: So it is of the case in 20. H. 6. that if one be brought before the Sheriff, that the Mayor may dismiss him, yet after judgement he may not dismiss him. Likewise 12. E. 4. where one would have prescribed to buy things without paying of tolle, that he could not be allowed. And therefore I will conclude that such customs as stand with law, and reason, are to be allowed, and contrary such as swerve from the rules of law, and reason, to be disallowed. As this custom of yours, that a man should stop his neighbour's lights is altogether unlawful, and unreasonable, and therefore the plaintiff ought not thereby to be barred of his action. Mr. Manwood. Mr. Manwoods' Argument. Here be two matters chief to be considered, whether by the Common law this be a nuisance, to stop up part of a man's light, then if the Common law seem to be doubtful, whether the custom will help us, or not, diverse cases have been put, when a man toucheth not the of another, but on his own land doth wrong unto another man's. But all these cases do vary from our case, for they are where a man hath a private profit in a thing, and another by doing an act upon his own land taketh away the same, wherefore an action will lie, as the case in 46 Edw. 3. where the Abbot of Buckhurst had Salmon, coming in at sluice from the Sea, and a stranger stopped the same, so that they could not come, and he had his action. So it is where one taketh away my way, because this is a thing local. And so if water running to my Mill, if one miscarry the same: generally wheresoever I have a private profit, or interest, and one bar me of the same, it is injury: but the air is not any element local, neither may any man miscarry it, for it suffereth nothing to be void, also light, and air be not things of necessity, but of pleasure, and be not any profit in certo loco, and therefore not like unto other cases of things both profitable, and also necessary. The case of the Ferry I will grant, that if I have a Ferry to transport men, and another will erect another I shall have an action, because that I am compellable to maintain it, and the not keeping of it, is presentable in a Leete. The same Law is of the Market, where the King granteth another Market ad nocumentum of mine, I may have a Scire-facias to repeal his letters patents if he have these words in them, that the grant should not be to the hurt, or prejudice of any other market; and if not, I shall have an action on my case: your case was also compared to the case in 4. E. 3. and 4. ass. pla. 3. where the ass. was maintained, not for that the plaintiff was annoyed by the smell of the smoke, but because his Appletrees, and other his fruits were destroyed by the same, and this is a good reason, for that it is to his disinheritance. As for the case of the Limehouse at Ratcliff, and the smoke of Smith's houses which cast many unsavoury smells, it is damnum absque injuria. And I myself was by a Smith annoyed by the smell of his smoke, but yet might I not have any action against him. In 18. Edw. 3. one built an house so high that it dropped from his to mine, in this case an action will lie, for my tiles are thereby consumed, gutta cavat lapidem. So of the case in 2. H. 5. if by common assent our Houses join and a gutter is made betwixt us, if I pluck up my part, you may maintain an action against me. All these cases hitherto put, have been of taking away a local commodity, or else of consuming something. The case of the filth I find not in my book, but in the book of Entries, and there it was Per parietes, so that the walls were hurt thereby. But I will agree with you, that if all your windows were stopped, that an action will lie, and where you say fit utere tuo ut alienum non laed as, this is not meant of things of pleasure, but of things of profit. And here is not any part of your house consumed, but herein a let of your pleasure only, for which your action is not maintaineable. And if I have a Windmill, and another will build another by mine, I cannot have any action against him, 11. H. 4.7. E. 3.22. H. 6. But otherwise it is of a Water-milne, 9 assisar. pla. 19 where one had a Watermill, and another built near unto him, so that he could not grind so much as he was wont, in this case a man may very well maintain his action. If I have an Inn, and another set another in the same Town, he is not punishable, but if he will stop my guess, which come to my house, I shall have remedy. If I have a Brewhouse, and another build another by mine, I shall have no action. 12. H. 8. If water fall on my land, and I make a Sluice, and let it out of my land unto another man's; this is dispunishable, for every man may do this one after another until it come unto the River, but if it be a river, otherwise it is; For there it is in loco certo. If one house should not be adjoining unto another, it would be a great deformity, and if Cheapside were so built, it would be a strange Cheapside. And the Civil laws say, that two lights on the former part, and back of an house, are sufficient. And if you make your windows into our garden, this is a wrong done unto us, for by this means I cannot talk with my friends in my Garden but your servant may see what I do, and so the wrong first begun in Mr. Hales. And therefore Vim vi repellere licet. And I S hath not consumed, or hurt any part of his house, but interrupted him of his pleasure only. But I further affirm, that for every hurt a man may not have an action, but if a man be oftentimes hurt, he may very well have an action. As if the Lord distraineth for rent, an action lieth not, but if he distrain so oft, that I cannot blow my land, I shall have an assize. So the Kings grant of exemption to one is good, but if it be to diverse, it is not good. But if the Common law would not help us, yet custom will, & whereas it hath been said, that it is against natural reason, and law, it is not so, Consuetudo ex rationabili causa privat communem legem, and unless it do privare communem legem, it is no custom. As that an Infant of 15 years age, may aline. For at this age he may consent to marriage, therefore in as great reason may he alien his lands; and in some places any Infant of 9 veeres may bind himself apprentize, which is a good custom and standeth with reason. But some customs there are that be not good, As that the tenants shall not drive their Beasts into the Common before the Lord hath put in his. So if the less will prescribe to surrender at his will, 7. H. 6. otherwise it is of the custom in the 14. H. 4, that the Tenant shall not alien without the presentment of the same before, this is a good custom, and yet against common reason, but yet if it hath any taste or smatch of reason, it shall be allowed. As if the Lord prescribe that the tenant shall not Common with any beasts, but those which were bred on the same land, this is good, for this will cause the tenant to breed Cattles; likewise that a female sole Merchante shall sue without her husband, this is good, and yet against Common law, and reason, because the husband hereby is discharged of all such business: therefore if a custom have any part of reason, it shall be allowed. As 8. E. 3. that a man may make an estate to his wife during her life, and that should be as good as an endowment ad ostium ecclesia. So is it of the custom of the Isle of Man, that to steal a Capon, or a Pig, shall be Felony, and not to steal a Horse, or Cow, for that the one may be hid, the other may not. Likewise is it, that the youngest son shall inherit, because he is less able to help himself. So is it of the custom of Kent, The Father to the bough, the son to the plough, and yet directly against the Common law. So I think of the case of Hogs put by Mr. Wray, for that in the time of pestilence it is dangerous to let them come into Cities. This City is the greatest City, and most populous in this Realm, and the more populous the more honourable, & the more buildings, the more populous and honourable will it be. And therefore Building is to be favoured. And by this building all his light is not stopped, but parcel. And Mr. Hales thereby looseth no not any great commodity, but is restrained of a little pleasure, for which he cannot maintain his action. To the act of Parliament I will speak nothing, but this I will say, that if any custom be merely void of reason, it is not good. As the custom in 5. H. 7. that if the Lord distrain the beasts of his tenants for rent, that he may detain them until he be satisfied at his pleasure; and 21. H. 7. that if any do break the Pound he shall pay 3 l. this is a void, and unreasonable custom to bind an estranger, and yet by common consent of the Lord, and tenants, it is good to bind the tenants. So if I prescribe, that if any man's Sheep go on my ground all the day, to have the foldage of them in the night, is a good custom, because by common entendment the owner hath quid pro quo. So our custom is for the maintenance of the City, neither is it against the common law directly, neither hereby any offence, or hurt is done unto Mr. Hales, for his House is not thereby impaired. And therefore, I think his action will not lie. Finis de cenx Arguments. Resolutions of the Judges of Assizes, 1633. 1. Question. WHether the Churchwardens, and Overseers of the poor of a Parish with assent of two justices of the Peace, one being of the Quorum, may by the Statute of 43. Elizabeth, cap. 2. or any law enforce a Parishioner of the same Parish to take a Child of a poor parishioner of the same parish, who is not able to keep his said child, to be an apprentice? Resol. The Statute of 43. of Elizabeth, which saith, that the Churchwardens and overseers of the parish shall put out Children to be apprentices, necessarily implieth, that such as are fit must receive Apprentices, and the putting out of poor Children to be apprentices is one of the best ways for the providing for the poor. 2. Q. If they may, then whether they must not give money with him, and who shall determine what money shall be given with him, if the party that is to take such an apprentice, and the Churchwardens, and Overseers cannot agree thereupon? Resol. There is no necessity that money must be given, but that must be left to the discretion of the Churchwardens, and Overseers, all circumstances of age and ability, being considered, and if they cannot agree with the party, than the justices of Peace near adjoining, or in their default the Sessions of peace are to determine these Controversies. 3. Q. Whether a Knight, Gentleman, Clergyman, or Yeoman, or one that is Sojourner, using husbandry, clothing, or grazing, or the like, may be enforced to take such an apprentice? Resol. Every man who is by calling or profession or manner of living, that entertaineth, and must have the use of other servants of the like quality, must entertain such apprentices, wherein discretion must be given upon due consideration of circumstances. 4 Q. Whether a wealthy man keeping few or no servants, nor wanting a servant, but living privately may be enforced to take such an apprentice; if not, then whether he may be taxed towards the putting forth of such an apprentice? Resol. For the receiving of such apprentices, the answer may be referred to the question next before; but out of doubt every such person must contribute to the charge, as to other charges for the provision for the poor. 5. Qu. Whether they may enforce a parishioner that is of one parish, to take such a child, apprentice, that is of another parish, but within the same County or division, if the proper parish be not able to provide for the children of the same parish? Resol. The justices may provide Masters for them in other parishes within the same hundred; if the same hundred be not able, then out of that hundred in the rest of that County; As for other provision for the poor, which must be at a quarter Sessions. 6. Q. If such a Parishioner may be enforced to take such an apprentice, and shall refuse not only to take such an apprentice; but also refuse to be bound to appear at the next quarter Sessions, or Assizes, what shall be done to him? Resol. If any refuse; let such a one be bound over to the next Sessions or Assizes; if he refuse to give such bond, let him be sent to the Gaol, there to remain until he will give such bond. 7. Q. If such a Parishioner who refuseth to take such an apprentice shall be bound over to the Sessions for not taking such an apprentice, and when he appeareth there, shall likewise refuse, what shall be done to him, and what shall be done to the Parents who refuse to suffer their Children to be put out to be apprentices, themselves not being able to maintain them? Resol. If at the Sessions or Assizes such a one refuseth to take an apprentice and his excuse be not allowed, it is fit he be bound to the good behaviour, and it will be a good course to indict such a refuser for a contempt, and thereupon to fine & imprison him; if he refuse to be bound to the good behaviour, let him be imprisoned until he will; & the King's book of orders directs that such be bound with good sureties to appear at the Council board; & if the Parents of such poor children refuse to suffer their children to be bound apprentices, or being bound, entice them away, themselves not being able to maintain them, let them be committed to the house of correction. 8. Q. Whether it be in the power of any general quarter Sessions to mitigate any penalty upon a Statute law; If the party indicted shall submit himself to the fine of the Court, and waive the traverse? Resol. If the party be convicted or confess the fault, it is not in the Power of the Court to mitigate the fine, in such cafes where the Statute makes it certain: but if the party indicted protesting his Innocence, yet quia noluit plitare cum domino Rege puts himself up into the grace of the Court, the Court may impose a moderate fine, and order to forbear the prosecution. 9 Qu. If any be bound to appear at the Sessions, and shall tender submission to the Court, whether the Sessions may stay the indictment, and mitigate the fine aforesaid upon the confession of the fact? Resol. This is answered before to the next precedent Article. 10 Q. If a man be convicted for being drunk, tippling, and keeping an unlicensed Alehouse, or being licenced, for suffering others to remain tippling in his house, or for swearing or driving Cattles upon the Sunday contrary to the Statute in that case provided: whether the justice of Peace, before whom he was convicted, or any other justice of the Peace may discharge him of all or part of the Forfeiture or punishment apppointed by the Statute? Resol. The justices have no such power of mitigation after conviction, where the Statute appoints the measure of the punishment. 11. Qu. Whether a Constable may upon a warrant for carrying one to the house of correction for keeping an unlicenced Alehouse upon the second conviction, break open the house wherein the party convicted is, to apprehend him? Resol. This question is to be advised upon, it is put in general terms and referred to be considered in the particular where it appeareth. 12. Qu. If a woman unmarried be hired from week to week, or from half year to half year, in one Parish, and there is gotten with child, and then goeth from thence unto another parish, where she is settled in service by the space of two or three months, and then discovered that she is with child: The question is, whether she shall be settled in the Parish where she was begotten with child, or in the Parish where she was last settled? Resol. The place where such a woman was lawfully settled, is the direction in this case, not where she was begotten with child. 13. Qu. If a woman-servant unmarried be begotten with child, and then goeth out of her Mistress service, before or after it is discovered that she is with child, and the reputed father be run away, or is not able to free the Parish: whether the Master may be enforced to provide for her till she be delivered, and for a month after? Resol. If the Master hath legally discharged his house of such a servant, he is no more bound to provide for her then any other. 14. Qu. In case a Parish consist part of ancient Demean, and part of Guildable, an Assize is made for the relief of the maihemed Soldiers, the Gaol, etc. according to the Statute of 24. Elizabeth, cap. 2. whether the tenants in ancient demesne shall contribute with the Guildable for the payment of the Assize? Resol. The Statute doth not distinguish between the ancient Demean and the Guildable in these cases, ubi lex non distinguitur, ibi nec nos distinguimus. 15. Q. Whether an Indictment of forceable detainer be within the Statute of 1. jacobi, cap. 5. and not to be removed by Certiorari, unless the party Indicted first find sureties according to that Statute, and whether the party Indicted be to be bound in his absence to prosecute according to that Statute, and whether an Indictment of forcible entry, etc. found at a private Sessions be to be removed by Certiorari without sureties, according to that Statute? Resol. This is fittest to be left unto the Court of Kings-bench, to whose Commission, and jurisdiction this is most proper. 16. Q. If one be convicted upon the Statute of 3. Car. R. cap. 13. for driving of Cattles on the Sunday through several parishes; whether he shall forfeit 20. s. to every of the said Parishes; or only to one; if to one, then to which of them? Resol. This Statute giveth the Forfeiture but of one 20. s. for one Sabbath day. Although the driving on that day be through diverse Parishes. Therefore where the action is first attached, and the distress first taken, that parish shall have the benefit of the Forfeiture, and not the other. 17. Qu. If one who is under the age of 30. years, and brought up in Husbandry, or a maid servant, or brought up in any of the arts or trades mentioned in the Statute of 5. Elizab. c. 4. and not enable according to that Statute, to live at his or her own hand, shall be warned by two justices of the Peace to put him or herself in service by a day prescribed by them, and shall not do the same accordingly, but shall after continue living at his or her own hand, what course shall be taken with such a person, and how punished? Resol. Such persons being out of service, and not having visible means of their own, to maintain themselves without their labour, and refusing to serve as an hired servant, by the year, may be bound over to the next Sessions or Assizes, and to be of the good behaviour in the mean time, or may be sent to the house of correction. 18. Qu. Whether the tax for the relief of the poor, upon the Statute of 43. Elizabeth, shall be made by ability or occupation of lands, or both, and whether the visible ability in the parish where he lives; or general ability wheresoever, and whether his rent received, within the Parish where he lives shall be accounted visible ability, and whether he shall be taxed of them only and for any Rents received from other Parishioners: and what shall be said visible ability? Resol. The Land within each parish is to be taxed to the charges in the first place equally and indifferently, but there may be an addition for the personal visible ability of the parishioner within that Parish according to good discretion, wherein if there be any mistaking, the Sessions, etc. or the justice must judge between them. 19 Q. Whether shops, salt-pits, sheds, profits of a Market, etc. be taxable to the poor as well as lands, Colemynes, etc. expressed in the Statute 43. Elizabeth? Resol. All things which are real, and a yearly Revenue, must be taxed to the poor. 20. Q. Whether the tax for the County stock, Gaol, and house of Correction is to be made by the Statute of 14. Elizabeth, cap. 43. Elizabeth: by ability, and upon the Inhabitants of the parish only, or upon them, or the occupiers of Lands, dwelling in that parish: or whether such as occupy lands in that parish, and dwell in another parish shall be taxed? Resol. If the Statute in particular cafes give no special direction, it is good discretion to go according to the rate of taxation for the poor: but when the Statutes themselves give directions, follow that. 21. Q. Whether any taxes ought to be made for the charges that petty Constables and Borshoulders are at in conveying rogues from parish to parish, and relieving of them and how to be rated? Resol. It is fit to relieve the Constable and Tything-men, in such sort as it hath been used in the several places where they live. 22. Qu. Whether a justice of Peace may discharge a servant being with child from her service, allowing that as a reasonable cause that she is thereby made unable to do the service which otherwise she might have done, and if he may discharge her, whether that Parish shall provide for her, till her delivery, if she cannot provide for herself: and so also if her time be expired before her delivery, who shall provide for her after her time ended? Resol. If a woman being with child procure herself to be retained with a Master who knoweth nothing thereof, is a good cause to discharge her from his service. And if she be begotten with child during her service, it is all one, but the Master in neither case must turn away such a servant of his own authority. But if her term be ended, or she lawfully discharged; the Master is not bound to provide for her, but it is a misfortune fall'n upon the parish, which they must bear, as in other cases of casual impotency. 23. Qu. Whether being delivered for a bastard child in one parish, and goeth into another with her child; and becomes vagrant, and so is sent to the place of her birth: her bastard child being under the age of 7. years, shall be settled with the mother, and there maintained, if the mother be not able, nor the reputed Father known, found: or whether it shall be sent to the place of its birth, or being settled with the mother, whether the Parish where it was borne, shall be ordered by the two next justices to pay a weekly sum towards the maintenance of it? Resol. The Bastard child must be placed with the mother, so long as it is within the quality or condition of a Nurse child, which shall be, till seven years of age; and than it is fit to be sent to the place of its birth to be provided for, the mother or reputed father, not being able. And the Parish where the child is borne shall not be forced to contribute to the charge, as long as the Mother lives, and the child be under 7. years old. 24. Q. A man with his Wife and Children takes an house in one Parish, for a year: and before the end of his term is unlawfully put out of possession, and after taketh part of an house, as an Inmate in another Parish, from whence he is also put out, and then not being able to get any dwelling, they come to lie in a Barn in a third Parish where the Husband falleth sick, and the Wife is delivered of another child, where ought these to be settled? Resol. If a man or woman having house or habitation in one parish be thrust out, this is an illegal unsettling which the Law forbiddeth, for none must be enforced to turn vagrant, and such one must be returned to the place where he or she was last lawfully settled, and the Child also borne in the time of this distraction. 25. Q▪ Whether an apprentice put out by the Churchwardens, etc. according to the Statute to a Master in another Parish, if his Master dye and leave no Executor or Administrator fit to keep an apprentice or able to place him: He shall be provided for in the parish where he was apprentice or shall be sent back to the parish from whence he was put out? Resol. Servants and apprentices are by law settled in that parish, and if they become impotent there, the parish must abide the adventure after their term or time of service be lawfully ended. 26. Q. What is accounted a lawful settling in a parish, and what not? Resol. This is too general a question to receive a perfect answer to every particular case which may happen: but generally this is to be observed, that the law unsetleth none who are lawfully settled; nor, permits it to be done by practice, or compulsion, and every one who is settled is a native householder, sojourner, an apprentice or servant for a month at the least, without a just complaint made to remove him or her, shall be held to be settled. 27. Qu. A rogue is taken at C. and will not confess the place of his birth: neither doth it appear otherwise but that he confesseth the last place of his habitation to be at S. hereupon he is whipped and sent to S. at his coming to S. the place of his birth is there known by some to be at W. and thereupon the rogue confesseth it to be so: whether he might without any new vagrancy be sent to W? Resol. In this case it is fit to sent such a rogue to the place of his birth: for this is but a mistaking and no legal settling. 28. Q. If an Indictment be preferred to the grand jury of the quarter Sessions of the peace against one for murder, manslaughter, for robery, felony, or Petilarceny, and ignoramus found thereupon, whether the said Sessions may deliver the party by Proclamation or not? Resol. Not by Proclamation at all, but for petty Lacenyes, and other petty Felonies; in discretion the Gaol may be delivered of them. 29. Q. If a Constable be chosen and refuseth to take his Oath, what shall be done, and whether a Constable may make a deputy, and by what means? Resol. The refusal or neglect to take oath in such a case is a contempt worthy of punishment, and thereupon to fine, and imprison him, and the making of a deputy is rather by toleration, then by law. 30. Qu. If a Constable dye or remove out of the parish where, etc. How is his place to be supplied? Resol. By the Lord of the Leete, if that time fall near, otherwise by the Sessions; but if that be too fare off, then by the next justices: 31. Q. If a poor weak man be chosen Constable or Tythingman, and be unfit for the place, how may he be removed, and a fit man sworn in his room? Resol. The justices of Peace must help this, and if the Lord of the Leete have power to choose a Constable or Tythingman and perform so ill, it is a just cause to seize his liberty. 32. Qu. If a Nurse-child, a Scholar at a Grammar-schoole, or in the University prove to be impotent by Sickness, lameness, lunacy, or discovery of Ideocy, etc. how such persons shall be disposed? Resol. A Nurse-child, or a Scholar at the Grammar-schoole, or at the University, or persons sent to the Common gaol, Hospital, or houses of Correction, are not to be esteemed as persons to be settled there, more than Travellers in their Inns, but their settling is where their Parents are settled, and Children borne in common Gaoles, and House of correction, their parents being prisoners, are to be maintained at the charge of the County. 33. Qu. What proportion Parsonages, or Tithes shall bear to the taxation of the poor of the parish? Resol. The Parson or Vicar presentative, shall according to the reasonable value of his Parsonage, having consideration to the just deductions. 34. Qu. Whether for the placing the poor of the parish, not to be remove by consent of the parish, these poor men may not be placed as Inmates for a time? Resol. They may by express words of the Statute of the 43. of Elizabeth. 35. Qu. If a parishioner or owner within a parish do bring into the parish without the consent of the Parish, a stranger of another parish, which is, or apparently is like to be burdensome unto the parish, how they may ease themselves? Resol. By taxing such a one to the charge of the rates of the poor, not only having respect to his ability or the land he occupies, but according to the damage and danger he bringeth to the parish by his folly. 36. Qu. For warding in the daytime, for apprehending of Rogues, whether the Constable may not enlarge it to a farther time? Resol. Warding in the daytime is of great use, and must be left to the discretion of the Constables or direction of the justices to vary according to the occasion. 37. Qu. Whether Alehouses ought to be allowed only in thoroughfare Towns, and others in other places to be restrained only to sell to the poor out of doors. Resol. The justices shall do very well to allow none but in places very fit for their situation and uses, and to moderate the number. 38. Q. A man for his quality otherwise fit to be a Constable, or of other Office of that nature, procures himself to be the King's servant extraordinary, and by that means would excuse himself to serve in the Country? Resol. A servant extraordinary may well perform his ordinary service in the Country according to his quality. The justice's opinion touching the Commissions by which the justices sit at Newgate. Anciently felonies included all trespasses, therefore the justices of Gaol delivery have power to hold plea of trespasses against them in prison or upon bail to render themselves. THE justices at Newgate sit by virtue of two Commissions (viz.) Gaol delivery and Oyer, and determiner. By the Commission of Gaol delivery they may try all prisoners in the Gaol or by B●yle, or such as be indicted will render themselves, generally for all Felonies: and also for such other offences as are particularly assigned to them by Statute. The Statute of 4. Elizabeth 3. cap. 2. doth give them power to receive Indictments against Prisoners or such as are upon bail, v. 1. Mar. Dyer, 99 justices of Gaol delivery hold pleas of all appeals of felony or murder against one in prison by their general Com: and of appeals: so by the same reason to take Indictments. and to proceed to try the same (viz.) Indictments taken before the justices of the peace, and by equity thereof all Indictments before coroners, 3. Mar. Bro. Commission. omnium. 24. saith, That the Commission is add deliberand. Gaol. de prison. in eisdem existen. But they cannot take Indictments as justices of Gaol delivery, but being justices of the peace, they may take Indictments against prisoners, but not against them that be at large, for as much as power is given them, consequently they must have means to do so, which is by Indictments, Id quarend. Howsoever it is clear, that they may inquire of many offences and take Indictments in such cases where power by the Statute is given to the justices of Gaol delivery, in such cases where they have authority by Law or Statute there the title of Indictments is, that Ad gaolam deliberationem tent. before the Commissioners of Gaol delivery, I. S. was indicted, and the record must be made up so. And whereas by the Statute of 4. Eliz. 3. cap. 2. Indictments taken before justices of peace or Coroners, or any other against any Prisoners, than the entry of the Indictments is returned taken, Memorand quod ad generalem Sessionem tent. before A, B, C, etc. justices ad pacem in Com. Middlesex or London, I. S. was indicted, and then tried before justices of Gaol delivery, and by virtue of the said Statute, Indictments taken before justices of the peace of London or Middlesex, are tried before the justices of Gaol delivery. The Commissioner of Oyer and Terminer is Ad triand. inquirend. audiend. & determinand. They may inquire of all offences mentioned in the Commission, albeit the offenders be at large, but they cannot try Prisoners upon Indictments taken before any other than themselves, as the justices of Gaol delivery may by the aforesaid Statute, unless there be a special Commission made, as it was in the case of the Earl of Leicester, 3. Mar. Bro. Com. 24. mentioned in Blow. Com. for the ordinary Commission of Oyer, and terminer is add inquirend. audiend. & determinand. therefore they cannot determine of things unless they made enquiry first, and on the other side also the justices of Gaol delivery may try Indictments taken before justices of the peace, yet if one indicted before Commissioners of Oyer and Terminer, the justices of Gaol delivery cannot try the same, because the Record of the Commission of Oyer and Terminer are to be returned in the King's Bench, 44. E. 3.31. The Commission and the Records of the proceed before the justices of Gaol delivery, are to be returned to the Custos Rotulor. of the County, when the same persons are justices of Gaol delivery, and of Oyer and Terminer, they may sit the same day and place, and inquire by the same jury, but the entry of the Records must be several, according as the Indictment is. At the Assizes in the Country, the justices have their several power as the justices of Gaol delivery, Oyer and Terminer, and justices of the peace. But when the Records are made up, they must be according to the power they made election to proceed upon. This is the regular and legal course. But the Clerks of the Assizes promiscuously make entry thereof, But if a Writ of Error be brought, they must certify according to Law, or else it will be erroneous, and so upon a Certiorari. The Sessions of London may be begun at the Guild-hall, and then adjourned to Newgate, if some Indictments be at Guildhall, than those must be so certified: if others at Newgate, than the adjournment must be mentioned, and that the Indictment was then taken. Note that the trial of Indictments taken before justices of the peace of London, cannot be tried at Newgate, as in nature of a trial before justices of the peace at London, for many of the Commissioners, for Gaol delivery, are not justices of the peace for London, but in such cases the trial must be before the justices of Gaol delivery: as upon Indictments taken before the justices of the peace of London; as in the case of Indictments taken before the justices of the peace of Middlesex. But if Indictments at Newgate be originally taken before them, as justices of Gaol delivery, than it is inquirable how the jury sworn, and impanelled to inquire at the Sessions of the peace of London, or Middlesex, do serve to present Indictments before the justices of Gaol delivery at Newgate, unless the custom and usage will warrant, the two several juries, sworn at the Sessions of the peace for London, or Middlesex, are also by the same oath and impannelling to serve for the grand jury for the Commission of Gaol delivery, and Oyer, and Terminer. Upon conference with Mr. Keeling, and the Clerks for Newgate of London, and Middlesex, and the Clerks of Assizes, and view of the several Entries, a more mature and certain resolution may be given, this being in haste, and without such considerations as were requisite. FINIS.