The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCCLV. The Chamberlain of London's Case. Mich. 33 Eliz. In the Kings Bench.

THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall,* 1.1 grounded upon an Act of Common Council. See C. 5 Part, The matter was removed into the Kings Bench by Corpus cum causa: Fleetwood, Recorder of London, prayed a Procedendo. It was Objected, That they of London could not make Ordinances to bind the Subjects, as an Act of Parliament. To which, It was said by Fleetwood, That the Custom of the City is, That the Mayor and Aldermen, and four persons chosen out of each Ward by the Communalty, may make Ordinances, which they call Acts of Common Council, and they shall bind every Citizen and Free-man, and all their Customs are confirmed by Act of Parliament, and by Magna Charta, which hath been confirmed 52 times; and also by the Statute of 7 R. 2. For that King seised their Liberties, and drove them to pay for the Redemption of them 100000 Marks, and then the said King confirmed them unto them for ever; and therefore this Ordinance being made according to our Custom, ought not to be impeached: As in Case of matters of the Forrest, If one be punished for offen∣ding against an Ordinance made for the governing of the Affairs of the Forrest; you cannot remove the matter before you. So is the Law called Lex Idumaea, concerning Rivers and Fishing, in which are divers Ordinances, That none shall kill Salmons at certain Seasons of the year, and so of other Fishes: If one be punished by force of such Law, he shall not be relieved here; for the Law of the Land hath always allowed such particular Customs. And see F. B. If two Merchants put their Stocks together, and so Traffick together, and the one dieth, The Survivor shall not have the whole Stock, as the Common Law is, but the Executor of him that dieth shall have an Accompt against the other; and that is per Legem mercatoriam. Cook, to the same intent. This Act of Common Council is good, and according to the Law, that is, of Common Right. There are divers Statutes made for the true making of Cloth, and to take away the abuses and deceit in the making of it, and this Act of Common Council is for the well exe∣cuting of the said Statutes; and I conceive, there is a difference in making of Laws by a Corporation; A Corporation may make an Act for the better executing of any Law established at the Common Law, but new Laws they cannot make; As those of a Town, who have used to have Common in certain Lands, they cannot make a By-Law, That such a one in such a Town shall not have Com∣mon there; but that none shall use his Common, but at such a

time; such a By-Law made, is good. See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit. Assise 413. A Town had Common of Turbary in a Marsh, and divers of the Inhabitants of the Town had made Trenches in the said Marsh; and some had not a full Foot of Land in the Town, and such persons by their Trenches which they had made there, used to carry Turffs out of the said Marsh by Boats, and sell them, unto the value of 20 Marks per annum, to their great private profit, and to the great grievance of the others. For which cause, It was provided by common assent of the Free∣holders of the Lord of the said Town, That all the Trenches in the said Marsh should be stopped, so as from thenceforth no Turffs be carried in Boats by the Trenches. And there it was holden, That if the greater part of the Commoners assent, the same shall bind the others who have not assented; for ubi major pars, ibi to∣tum: And then, if such Towns may make Laws; a fortiori, The City of London. Secondly, This Law is good by Custom; for they have used to make such Acts and Ordinances time out of mind, &c. and these Customs are confirmed by Act of Parliament; and also they may appoint a penalty, for to what purpose otherwise should they make an Act, Oderunt peccare mali formidine poenae. Also this Action is maintainable; for an Amercement in a Court Baron, an Action of Debt lieth. Gawdy Iustice, 44 E. 3. 19.* 1.2 every one ought to assent. Wray, There the Ordinance made was to charge the Inheritance but here it is only to charge their Goods; where∣fore the assent of the greater part is sufficient. And afterwards, a Procedendo was granted.

Notes

• * 1.1

  5 Co.
• * 1.2

  1 And. 234.