word, but not the thing, and that they have | ago: And yet this is the substance of Mr. Atforfeited by such and such acts: This sure torney's issue, and his replication. will be very hard upon us; for if it be a My lord, the authorities before cited in Palforfeiture, it must relate to the time of the mer, Coke's Entries, Rolls, and my lord thing done, to the time of the making the act Hales's Common-place book, are not all; for of the common council, to the time of the toll I have some other that never saw the light in levied, or to the time of the petition; and if it print yet; and that is the case of the king do so, it must relate like a forfeiture for trea-against Bradwell and others, Trin. 13 of this son; it must reach all mean acts, all the leasesking. A Quo Warranto was brought against that we have made since, are gone; all the them for usurping to be a corporation or comjudgments that we have given in any cause, pany of musicians; It had been a strange are coram non Judice, and void; all the acts thing, if the Quo Warranto had been brought of the corporation are overturned by this for- against that corporation, and then the Attorneyfeiture; and we have been under a vast mis- General had said they were no corporation, take all this while. We have had no mayors nor ever were; there they did think best and nor sheriff's, no kind of officers, no manner of fittest to go against Bradwell, and the rest, and regular and legal proceedings; but we have that by name, and only so, not against the been under a great mistake ever since this mo- body corporate. So in that case of the corponey was ordained or levied. We have for-ration of Worcester, which was lately tried feited all; and that it is so, is plain, because in all Quo Warranto's, wherein persons are convicted for usurping of liberties, there is a fine set upon them for continuing that usurpation, and reason good; then if it be an offence for continuing the liberty, we must be fined for doing it ever since the forfeiture, when, if Mr. Attorney General's rule be right, there has been no such corporation; but we ought to have discontinued all our acting as a corporation and laid it down; and so every step that we have taken since hath been irregular, and every act void.

If so be an action be brought against Baron and Feme, and the plaintiff should in his replication say, they were divorced several years before, has he not undone all his pleading? Here then is our case: Mr. Attorney-General admits us to be suable, and yet charges us to have no capacity to be sued: I do implead you, but you have no right to be impleaded; here he brings us into court, and when he has brought us here, he quarrels with us for being here. He makes us defendants, and then questions whether we ought to be so; and so his great charge against us is, that we are what he would have us to be, and what he hath made us to be; for if a month before the information, the corporation was not, but the very being of the corporation was usurped, how come we at the month's end to be defendants? Here comes a new creation interposed in that time, and makes parties sucable in the court, when by the charge in the infor

mation we were not so a month before.

And then, my lord, the information is not quite so bad, but the replication is worse: First, he takes issue, that we never were a corporation, at all; and the next thing is, if ever you were a corporation, you have ceased so to be, because you have forfeited it so, and so several years ago. This is just then to put a common case, (and I confess a very familiar one it is) if I should bring an action against a man, and when he hath pleaded, I should by way of replication set forth, there never was any such man as the defendant, and take issue upon it; or, if there were, that he was dead ten years

before your lordship in this court; when the Quo Warranto was brought against such men for usurping to be all aldermen and commoncouncil-men; if the Attorney-General had once called them common council-men, it had been a great repugnancy for him afterwards to say, that they were none: or if they were, that that privilege of their's was lost so long ago. So in the case of the Quo Warranto against the Bermudas company; it was against a corporation, and against particular persons by name both. These things have been considered, and doubtless they have gone on in an ordinary way. I must confess, I was not privy to that particular case; but by the report of that case, which I have seen, I have been informed, that the corporation never appeared ; for they said, it is not sense for us to appear; for it being a question by what warrant we are a corporation, it is not we, supposing us a corporation, that do usurp, but the particular persons that do usurp, if it be at all usurped. Now, my lord, if that had been a regular suit, no doubt but there would have been judgment against the corporation, which there was not; and certainly the replication of forfeitures was not good against the corporation, but against particular persons only.

All Mr. Solicitor's authorities for seising hold true, if the corporation would never appear: And what is the reason it should be brought against J. S. and J. N. but because corporations do never appear in such a case, in regard it were not congruous they should appear? for the Quo Warranto must intend it so, that they were not a corporation in being, by implying a forfeiture. Then say I, no judgment at all can be given upon this score; Non admittitur exceptio ejusdem rei, cujus petitur dissolutio ;' a man shall never be admitted to controvert that to be in being, which he himself desires should be destroyed, and so he has allowed it to be. Shall Mr. Attorney be admitted to deny the supposal of his own writ? And truly I think I might very well leave this part of the case, and this point, to Mr. AttorneyGeneral himself; for if he will have any thing to be answered by us, he must maintain us to

be a corporation capable of answering; and so I have reason to expect, that against his own replication he will be pleased to support the being of our corporation, and so dismiss us hence.

certain; and in all grants that ever were of pickage and stallage, they were never reduced to a certainty; and those are things too that relate to a market.

My lord, I have done with this point, and now I come to the replication, which indeed is a kind of a new Quo Warranto; for it brings in new matter, and therein they do charge two forfeitures; the one is, by reason of the abuse of the market, the other is, by reason of the petition. My lord, I shall answer both of them. That we were seised of the market, that is pleaded, and that is agreed: That we were seized of tolls, that is agreed too: That there is a custom in London to have common councils, and that this was by common council, is agreed; all this is agreed by the demurrer: That this toll (though by the way I must confess, and will agree with Mr. Solicitor, that it is not properly to be called a toll; for a toll is only for goods sold; and when they are sold, in recompence for the officer's attendance for the testification of contracts, and the entering them in their books; but I agree, this is not such a duty for goods bought and sold, but it) is for the accommodation of persons repairing thereunto for their stalls; and, if I would call it by any particular word, 1 had rather call it stallage than any thing else; it is for those accommodations, which we have been at vast charge in preparing and providing, and for the maintenance of requisite officers, and for the cleansing of the markets. Now Mr. Solicitor objects, That we cannot prescribe for a toll uncertain, and he cites the case of Murage, and the like; and so I must confess, where Murage is granted, it is commonly a thing uncertain; so is Pontage, and the like; but I believe (if I had thought, that it would have been a point insisted upon) I could have brought you instances where Murage, and such like things, have been granted in general, and they would have been ancient ones indeed: And there is a necessity for it in some cases; for when a town will repair its walis, the charge may be greater or less, as the particular accidents may be, and so perhaps a certain duty would not do it. When a wall is to be built, there the duty may be certain; but when it is built, to keep it in repair, the duty of Murage may be uncertain, according to the charge; and if the case be not so, it will come little to our purpose, which is a duty upon a great and a continuing charge. I will name him some things that he must agree, and I know he will grant, are uncertain, as pickage and stallage, which are duties for picking in my earth to dig holes for the posts of stalls to be fixed in: Now there can never be, nor ever was, any circumscribing in those matters; for circumstances in every of those cases must govern it. If I have occasion for my stall to use a foot of ground, one sort of sum is necessary; if ten feet, another sum; it ought to be equal indeed, but it could Bever be good, if it were limited to a sum

VOL. VIII.

1

And so I take it to be for keyage, anchorage, and the like, for when there are posts or places for ships, to which they may be fixed, the owner of the port may have a compensation for that; but that must needs be uncertain, according to the circumstances; if a ship be bigger or lesser, if a ship stay a month or a day, it is not fit the same rate should be paid; nor is it usually granted by particular words, Co. Entr. 535 and 526, Placit' 4, the king against the city of London for the waterbailage, and other things. They pleaded only a right in general, and do not say what the particulars were; and yet one of the things demanded in the Quo Warranto, was, as I said, the water-bailage; which, sure, if any thing ought to be certain, that ought. In that case it was good pleading; though I think 1 could say more against it than this thing, that is in the nature of stallage; so that all that Mr. Solicitor hath built upon that must, I think, needs vanish.

My lord, I do not think but London ought to be, and is as much under the obedience and correction of the king, as any city; but yet I believe, in these cases of their customs, you will give that allowance and indulgence to it, that all your predecessors have done, which is greater than they have given to any other corporations in the kingdom, and that because it was London. That there should be such a thing as a foreign attachment, I think, is hardly allowed in other places; I am sure, I have known it denied in some, that a contract in writing should be equal to a book-debt; that a feme merchant should sue or be sued without her husband; or if he be named, he should only be named for conformity. You take notice, that London is a port town, and that men that trade there, sometimes go beyond seas, and in their absence their wives trade by themselves, and perhaps carry on distinct trades while they are here; and so they may do in other places, may be; but only for the sake of London do you take notice of these things there, and not elsewhere. Their penalties, that are sued for in their courts, a great many of them are such as would not be well maintained in other Courts, or in any other place; and yet they are maintained there, as namely, that their penalties should be sued for before the mayor and aldermen, when the benefit of them goes to their use; and yet that is allowed in the eighth Report, notwithstanding the grand objection, that they are in some sort judges and parties, Rolls 2 p. Abr. Tit. Prescription, letter H. fol. 266, N°. 2, and 3. The city of London may prescribe to have a Court of Chancery in London, of matters tried in the Sheriffs Court, though such a Court cannot be granted by the king's letters patents; but the mayor and citizens of York cannot prescribe for such a Court, because it were very dangerous, that 4 C

such petty corporations should have such Courts. And, whatsoever is said by my lord Hobart in his Reports, 63. I do affirm, there is no act of parliament that crects a Court of Chancery in London or the Cinque-Ports. If Mr. Solicitor had struggled with me about the being, or not being of that act of parliament, I would have agreed with him, that there was no such, sooner than some that he says are

none.

agree toll-through, that cannot be prescribed for simply and generally; but by toll-through I mean, as you know, for passing and repassing through only, and not for staying. But yet even that may be prescribed for too, in consideration of repairing a great highway, or a very foul way, or maintaining a bridge, and the like. And therefore, if our considerations here be as good, then we maintaining those great places may prescribe for this duty, as for passing through the streets, though it were no market.

There is a famous case reported in Rolls 1, p. fol. 1, and 44, and it is in 2 Bulstrode, and also in Moor; it was the case of the bell-man of Litchfield: a prescription is made, that the corporation of Litchfield hath a market, and they ought to repair the way to it, and to appoint a bell-man that should sweep the marketplace; and that for this the said bell-man, time out of mind, had taken of those that brought corn to the said market, and opened their sacks to sell, a pint of corn, if but a bushel or under; if more, a quart. So that if it were opened and not sold, yet he was to have that duty, and that prescription was adjudged to them by all the judges; and yet it does not appear there, whether the repairing that way cost them 5s. or 5,000l. and yet by intendment they would not account it unrea

The customs of London have been upheld, and, I must confess, I think that is very strange, even against the general words of an act of parliament, 2 Inst. 20. A gaoler in London may permit his prisoner, that is in execution, to g0 at large with a batoon in any place within their jurisdiction, and it is no escape. And so is Plowden's Com. 36. A citizen of London may set up one retale trade, though he was bred to another, notwithstanding of the statute 5° of the queen. And for a general rule take that that is said in Palmer 542. Those of London may prescribe against a statute; and the reason is, because their liberties are confirmed by statute, and other towns are not. In Rolls Rep. 1, p. 105. Sprike against Tenant, my lord Coke being then chief justice, says, we take notice of the customs in our Courts, and other Courts in Westminster-Hall, and in London. Fleetwood, Recorder of London, says a very strange thing in 1 Leon' 284. Holling-sonable, though it might have been urged it shead's and King's Case, and in 4 Leon' 182, that the King's Courts ought to take notice, that those of London have a Court of Record; for if a Quo Warranto issues to the justices in Eyre, it does not belong to them of London to claim their liberties for all the king's Courts have notice of them. Aud truly I have been informed, I mean by copies of records, that when the justices in Eyre came to the Tower, this was a privilege allowed to them, they were not bound to set forth their liberties, as others

were.

My lord, I think this, as it is pleaded, is a duty very justifiable, and very well payable, by virtue of this custom. I do agree, as I said, a toll is properly for goods sold, and this is a custom for the accommodation of those that brought goods to be sold; and it is like that 1 Leonard 218, my lord Cobham's case, a duty paid for the standing in the cellar; and there that is held to be good. In Rolls 2 p. of the Abridgment, 123. Letter B. Hickman's case, the lord of a manor may prescribe to have the eighth part of a bushel of corn in four bushels that are brought to the market within the manor, in the name of the toll, and that is for stallage only; for it is said there, whether it be sold or not. And in the same book, fol. 265, the city of Dublin set forth, that they are owners of the port of Dublin, and that they maintained perches in the said river, to direct the ships in the deep Channel, and that they kept the Key and the Crane; and therefore, in consideration of that, they prescribed and demanded 3d. in the pound for all merchandizes in the said Port, and it was held good. Now I

was very unequal; if they could take a pint for that which was under a bushel, perhaps they would take, by that means, half of what the party bought; but if there were 15 bushels, they had but a quart, and this was objected as to the inequality of it; and yet they all passed over that by a reasonable intendment, and would not deny the prescription to be good. And the case of cranage in Dyer, and the case of 21 H. 7, 16, are admitted to be good law, where the town of Gloucester prescribed for a toll of boats passing by the river near the town.

Now, my lord, for ours, there was very great reason to induce it, the great alterations that were made in London by the fire; and it was not the first time that London was burnt: and if there should be war, and so great alterations and confusions, there were great cause, that the city, that lays out great sums, and must be at such a public charge, should not be losers by it.

And we do set forth more than they do in the case of Litchfield, that we provided the market-places at our own charge; and if they will use them, they must expect to pay some compensation for it; that we do keep officers, and pay them for cleansing and keeping order in the markets: and above all that, we provide standings and stalls, and such accommodations, and that I am sure is a provision no lord of a market is bound to make, unless he will; and therefore the market-people, that are accommodated by it, have great reason to pay for it; and we pay all the taxes for the market-places, for the ground is ours; and