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YAtes and four or five other persons,* 1.1 Freemen of the Town of Kingston upon Thames, being disfranchised by the Baylifs, &c. of that Corporation, moved for a writ of restitution to be restored to their freedoms and places in that Town, and had it granted, which writ was accordingly directed to the Bailifs, &c. of that Corporation, who thereupon do make retorn of the
writ, and therein set forth at large there Charter and privileges of the Town, and the cause of the disfranchisement of Yates and the others, and reasons why they were not to be restored. And by the retorn the matter of fact for which they were disfranchised appeared to be in substance this, viz. that there was a difference amongst those of the Corporation about making an Attorny of their Court, at a Court held for the Town, that there was like to be a tumult and uproar about this matter; whereupon the Baylifs that held the Court did adjourn the Court, and commanded all persons there to depart, and then they with the rest that were of their party went a∣way. But the other parties on the contrary side, whereof Yates and the rest that were disfranchised were a part stayed still in the Town-Hall, and said, the Court was not dissolved, and did affirm they were a Court, and did therupon make divers orders or acts of Court, and caused them to be en∣tred in the Court book where all the orders used to be entred To this retorn many exceptions were taken, and first by Sergeant Twisden, 1. That here was no sufficient matter of fact retorned to be done by Yates and the others, to cause them to be disfranchised. 2ly. That the retorn did not shew, that the Customs of their Corporation did warrant them to disfranchise any for such offences, or did shew that any person had at any time been disfran∣chised for such offences, 3ly. The retorn mentions that the persons dis∣franchised had broken their oaths as Freemen of the Town, but doth not set forth this oath at large as it ought to be. 4ly. They do not shew in the retorn that they had any authority to hold that Court which they dis∣solved, nor before whom it was held. 5ly. It is not shewed in the retorn that Yates and the others were at all convented to answer their offen∣ces, and so they are condemned without hearing of them, which is ille∣gal. To these exceptions Green of Councel to maintain the retorn made this answer, for the first he said, there doth appear a sufficient fact to be done by Yates and the rest to cause them to be disfranchised, viz. their tumultuous going into the Court, and staying there after it was dissolved, and making of orders, and entring them into the Book, and cited Sir Iames Bags case, that this their fact was a corrupting the orders of the Town. For the second the retorn doth sufficiently express, that by their Customs they may remove persons from their places in the Corporation for such offences, for the retorn saith,* 1.2 that persons have been from time to time removeable, which is all one as if it had said, they have been removed. 3ly. It is not necessary to set forth the whole oath of a Freeman, and here is as much of the oath mentioned as is needfull to shew that the oath was broken by them. 4ly. It is shewed in the retorn, that the Court was held according to their Customes, and so it shall be intended to be a good Court, and rightly held, and it needs not to be expressed before whom it was held. 5ly. It is expressed that they were convented, and that they had also notice of the dissolution of the Court. Mr. Attorney General on the same side said, Here is cause to disfranchise the parties; for here appears by their fact to be a setting up of government against government,* 1.3 and this is corrupting of government, and done by knowing persons that well understand the Cu∣stome of the Town, which makes their crimes the greater, and it is better retorned, that such persons are removeable, than to say they have been re∣moved, and here is more than an opinion of one of the parties against the o∣pinon of the others, for they have reduced their opinion into an Act to disturb the government. Mr. Recorder of London on the same side said, that here is a fact done to eradicate the whole government of the Town, for doing whereof the parties justly deserve to be disfranchised, and their entring of orders into the Register-book is a corrupting of the Customs of the Town, and tends to the subversion of the Corporation, and he cited 28 H. S. Male∣verers
case in Dyer. Alleyn on the same side, Here is sufficient cause shewed in the retorn to turn the parties out of their offices, unto which they pray to be restored if there should not appear sufficient matter to disfranchise them. Roll who when this case was first moved was chief Iustice said, here is one Groves that prays to be restored, concerning whom the retorn shews no cause at all why he was removed,* 1.4 but only that he was endicted of Fe∣lony, which is not a sufficient cause, for he may be endicted falsely, and it doth not appear that any thing hath been as yet done upon the: Endictment, and yet they allege this for cause why they will not restore him, and if you have no cause to remove him, then he is unjustly removed, and ought to be restored, and this cause you have shewed, such as it is, was after that he was removed, and so could be no cause of his removal. But for the rest there is no question but that here is a high contempt, and just cause to disfranchise the parties, for here is more than an opinion, as hath been urged for them, for there is an Act of a high nature tending to evert all government in hin∣dring the proceedings of Iustice, and the profit and wellfare of the Town, and a greater offence of this nature cannot be imagined, and therefore for the matter there is cause to disfranchise them. But the question is, whether the retorn be good, and as to that I con∣ceive it not necessary to set forth the whole Oath, or to aver the swearing of the Attorney. But the retorn ought to have been, that by their Custome they have used to remove persons for such offences,* 1.5 and not to say they are removeable, and of this I doubt and will advise. At another day Latch of Councel for Yates urged that the retorn was not good, for they have not shewn any Act done to remove any person for mis∣demeanors, according to the custom, as they have alleged it; for the re∣turn says only that such parties have been removable, and this is only a possibility of an act, and it appears not how they are removable,* 1.6 either by their Custom, or by their Charter, and consequently here is no ground for their removal returned, Pasch. 33 Eliz. C. B. a potential Custom returned is not good,* 1.7 possit & potuislet adjudged not good in Sir William Hattons case, and 21 Iac. usus fuit held naught. And as to the Objection that it is not necessary to return their power to remove, because it is a thing incident unto their Corporation, I answer they have returned a power, but have not made it good by the return. Mag Chart. 25. and to the Objection that a return needeth not to be so formal as a pleading, and that therefore if their power do appear upon the whole return it is good enough, I answer, that they have failed in the very matter of their prescription, and not in the form only, and they must certifie a good cause of their removal, that the Court may judge of it; and as to that which is objected, that their Char∣ter is a very antient Charter, and therefore cannot be pleaded, I answer,* 1.8 that they may give it in evidence, and also a Charter made time out of mind may be pleaded as an old deed may, although you cannot plead that it was made time out of mind. Serjeant Twisden on the same side, All cu∣stoms ought to be alleged in facto, 9 Car. Fletcher and Bagnals case, Licitum fuit for a Londoner to use any trade by the custom of London adjudged to be ill pleaded, and though it may be good in an evidence, yet it is not good in a return. Alleyn on the other side said, that the return is good in the returning of the custom, though it would have been ill in the pleading,* 1.9 which is stricter than a return need to be, and here is matter enough return∣ed to remove the parties, and the whole customs need not to be returned, and the informality of the return shall not make it ill, for this Court is to judge of the matter of fact returned, and so is Giles Bags and Wagoners case, and they have returned a custom to remove, and by consequence some have been removed, or else the return is false, which is not to be presumed. Wind∣ham,
Every custom is presumed by the Law to have a lawfull beginning, and shall be intended many times to be by antient Charter, namely, for such things as are not to be claimed without a Charter, but if they may be claimed without a Charter it shall be intended otherwise.* 1.10 An antient Char∣ter doth not lose its force by not being confirmed in Eyre, as Latch hath said, 24 H. 6. and there may be a prescription for things which have never been acted, if it began by Charter, 22 E. 4. f. 9. Green on the same side The ve∣ry words of the retorn do enforce that persons have béen removed. Glyn chief Iustice, I have no books delivered me in this case; And this Excep∣tion was moved the last Term, and it is very doubtfull to me, and my Lord Roll would not deliver his opinion, I could wish the business might be composed for the peace of the Corporation. To say that the lands have been demised and demisable, the words shall be taken distributive. But me seems here is no matter of fact returned for removing of any. At ano∣ther day the case was spoken to again, and against the return it was except∣ed as formerly,* 1.11 that the Town had not by the return intitled themselves to any power to remove the parties, for here is a prescription only in fieri and not in facto returned, viz. That such persons have been accustomed to be removable, and it doth not say they have béen removed, and these cases, viz, 20 E. 4. and Mich. 7 Car. Flower, case, and Mich. 9 Car. Fletcher and Bagshaws case, and Skipwiths case, 25 Eliz. C. B. were cited by Wild on Councel for Yates. Windham on the other side as formerly distinguished betwixt a pleading, and a return, which needs not be so formal as a plead∣ing, but shall be taken good to a common intent, and said that Wagoners case, which was as this is, was adjudged to be well upon good advice, and the substance of the prescription is well set forth in the return, and the for∣mality is not to be much stood upon,* 1.12 or regarded. Alleyn on the same side said, that the rule in Wagoners case comes home to this. Glyn chief Iu∣stice, There is an Action upon the case brought by Yates for this matter, and if it be found for him we will restore him, be the return as it will. Cu∣stom is the main hinge upon which all disfranchisements do move, and if that be not well alleged, it will be hard for the disfranchisement. Try your cause this Term, otherwise we will deliver our opinions upon the return. At a∣nother bay the Court was moved for their opinion upon the return, by Yates his Councel, whether it was good or not. Wherupon Glyn chief Iust. answe∣red, It were good you would agree as the Court hath advised; But since you will not we will give our judgement, for the cause hath depended long. And first I conceive that here is good cause to disfranchise the parties for entring of orders made by a pretended Court,* 1.13 which in truth was no Court, for their entry of such orders is very prejudicial to the corporation, and is to the ill example of others, to disturb the government. But Cu∣stom is the main cause of disfranchising any person, for by the disfranchise∣ment the party loses his freehold, which is no small loss, and therefore not to be put in practice but upon very good warrant; & yet in some cases for the advancement of government one may be put out of his freehold without a legal procéeding against the party, as Sir Iames Bags case is. But there must be a Custom or a Statute to warrant it. But here appears no such Custom upon the return, for the return is that for such offences the parties have used to be removable and dischargeable, which is meerly imaginary, and a thing in fieri,* 1.14 and not in facto, or in usage, and so it is as a dead thing in the womb which never had birth, for you have not shewed that it was at any time put in practice, or have made any direct affirmance of the Custom, as all Customs use to be pleaded. All Customs imply two things,* 1.15 to wit, a thing possible to be done, and that the thing hath some∣times been done, and so are all our pleadings, and the return ought to
have in it certainty enough to inform the Court of the master returned, al∣though it is not required they should be so precise as pleadings ought to be,* 1.16 for both the Court and the party must abide by the return, and it is to be ac∣knowledged as true. In Wagoners case cited, It was touched whether the Custom there was well alleged, and concerning the Customs of Lon∣don also, which do differ from other customs, they being confirmed by Statute, and there they allege a special act of Common Councel by Cu∣stom, and a Statute also to enable them to do as they did. I have conside∣red well of the return, and I hold the return to be naught,* 1.17 and therefore let him be restored. Ask Iustice concurred in opinion. The Court was moved to restore the rest, who were 4 in number, because all their cases were alike. Glyn chief Iustice, Let them be restored also, nisi, &c.* 1.18
Upon the re∣torn of a writ of Restitution to Freement places in Kingston up∣on Thames.
Removeable.
Opposition of government.
No cause of disfranchise∣ment.
Have used to remove.
Possibility of an Act.
Potential cu∣stome not good.
Charter plea∣ded and not given in evi∣dence.
Pleading. Retorn.
Antient Char∣ter.
Prescription in fieri.
Substance.
Cause of dis∣franchise∣ment.
Thing in fieri not in facto.
Possibility and use.
Return should be certain.
Ill return.
Restored.