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[86 a]

2 Cr. 152.

therefore is pleaded by way of custom; the nature of the thing is not changed, but still remains a prescription in his kind, though it be allowed to be pleaded by way of custom for necessity's sake. And this learning appears 1 Inst. 3. b. well in Gateward's case, Co. lib. 6. 59. b. where it appears, that a thing lying properly in prescription, as common did in that case, being an interest which must inhere in some body, cannot be pleaded by way of custom, nor cannot stand by custom where it cannot stand by prescription, as there they would have made it for inhabitants that are not permanent to prescribe; but yet common for copyholders in the lord's soil is allowed to be pleaded by 4 Co. 31, 32. custom for necessity's sake, whereas in the soil of another,

it must be laid by prescription in the lord; and yet the nature of both is a prescription.

But a matter of discharge as the principal case is, and discharge of tithes, as Gateward's case says, may be laid by way of custom; for that is not an interest, but an exemption, not positive but privative of the general possession. So it is indeed but an exception out of the interest, and in truth should be so pleaded as in the principal.

Customs in
London.

To the second point, this privilege of London is to be understood of such customs as are of the nature of local laws, peculiar laws for that city, general to all the citizens, differing from the general law of the kingdom; such as Littleton calls, in his chapter of Burgage, the customs and usages in many boroughs; and samples them, that the younger son shall inherit, that the wife shall have the whole land in dower, and that their houses and lands are devisable. Such are the customs in London, of foreign attachment, 7 E. 6. Dyer 85. and 3 Eliz. Dyer 196. and the custom 5 E. 4. fo. 30, that if a debtor become fugitive, he may be arrested before the day of payment. And Co. 5. lib. fol. 82, Snelling's case, that if one citizen be in- 126. a. debted to another in a single contract, it shall be equal to an obligation. And 21 E. 4. 16, 74, 75. And 21 E. 3. 46, Dyer 247. a. a good case to this very purpose, where in an assize of fresh force, in the court of Oxford, it was pleaded that

3 Cr. 409. 8 Co.

utra.

[86 b]

1 Cro. 517.

[87]

2 Ro. 580.

the custom of the town was, that if a man had possession of lands by forty weeks, he could not be put out but by the king's writ: whereupon the other would have taken issue no such custom. But it was resolved that this, being the law of the city, was not to be tried by jury, but by the judges as a matter of law, and so indeed in nature of a demurrer.

And the reason thereof is, that the judges of every place are supposed to have knowledge of the laws of the place whereby they do judge, and to have customaries among them; and therefore in suits in their own courts do determine them, as the judges at the common law do, in the king's courts, judge the general customs of the whole kingdom, being the common law. And so in London, by special privilege, they certify also their customs of this nature into the king's bench, which other towns do not. But their customs, even those that are their local laws, are triable by jury if they come to issue in the king's courts. And agreeing with this was found and showed a precedent, Mich. 37. 38 Eliz. Rotulo 418. in the common pleas, London, between Bilford, plaintiff, and Lowe, defendant, in an action upon the case for certain parcels of plate. And the issue was, whether the custom of London were, that there was a common market in London, for all goods in all open shops, all days, except Sundays and holy days, from the sunrising to the sunset; and concluded, et hoc parati sunt verificare, ubi et quando ac prout curia consideraverit. And then the defendants made their surmise for the trial of their custom by the recorder. Cr. mouth of their recorder, and prayed a writ accordingly. And it was granted returnable in Trinity term, and continued per non misit bre. until Octabis Mich. And then it was entered, that the conclusions of the defendant's plea ought to have been, et de hoc ponit se super patriam : whereupon the plea was so made and issue taken, and, upon venire fac. to the sheriff of London, found for the plaintiff, and had judgment. Which is a stronger case than this at the bar.

Custom of

London to certify their custom by their

Car. 517.

Jones 412.

And further in the principal case it cannot properly be said to be a custom of the whole city, nor for all the citizens personally, as all the customs in the nature of laws are, and as the form of surmise for the trial doth import; for it concerns only the body corporate of the city, and the place Queen Hithe only where the profit ariseth, and where the distress is to be taken for it.

[87 a]

As to the third point, the books are full, that challenges are allowed, where the issue concerns a city or corporation, and they are to make the pannel, or where any of their body be to go on the jury, or any of kin unto them, Co. L. 175. though the body corporate be not directly party to this suit: for which purpose see 15 E. 4. 18. 28. ass. 18. 21 E. 4. 11. where a dean and chapter bringing an assize, a juror was challenged, because he was brother to one of the prebendaries.

Now if such challenges be allowed where an attaint lies for a false verdict, much more here, where there is no way to reverse a false certificate; and yet it is true that And the certificate is no judicial act, but ministerial. therefore if the certificate be false, the party shall have his remedy by action of the case, and that not against the recorder, but against the mayor and aldermen; for it is their certificate by their recorder, and so is the pleading and surmise; and the writ to certify is a warrant to them, which takes away one defence made against their partiality to themselves, that they did not certify, but their recorder. As where a grant is of a cognizance of pleas to be holden before the steward of the grantee, licet the grantee fuerit pars; but there the steward is judge himself, and not the grantee, as the king's judges are between him and the parties; but here the recorder is but their mouth to speak for them, as they command him.

By that which hath been said it appears, that though in pleading it were confessed, that the custom of certificate of the customs of London is confirmed by parliament, yet it made no change in this case, both because it is none of the customs intended, and because even an act of parliament, made against natural equity, as to make a tom against

Stat. cannot

establish cus

natural equity,

[87 b] Ap. 139.

man judge in his own case, is void in itself; for jura naturæ sunt immutabilia, and they are leges legum.

[88]

Jenk. Cent. 287. Checq.

Cham. Mo. 298.

Yelv. 5. Lon

don. Assump

sit. Ro. 1. Ab.
767. 2 Cro.
247, 499, 569.

The law regardeth not things too small. Mo.

298. Yel. 5.

LASTLOW VS. THOMLINSON.

'De minimis non curat lex; therefore an error in calculation of a fractional part of a penny, will not be regarded.

LASTLOW brought an assumpsit against Thomlinson, declaring that Thomlinson sold him so many oats, as according to the rate of 10 shillings 9 pence for every quarter, shall amount to 52 pounds, to be delivered such a time, which money the plaintiff promised to pay such a time; and that the said oats after such a rate, came to 96 quarters and 6 bushels, which the defendant hath not delivered; to his damage, &c. Upon issue non assumpsit it was found for the plaintiff. And upon judgment a writ of error; and error assigned, that 96 quarters, and 6 bushels of oats, after the rate aforesaid, came to 52 pounds and three farthings, and so no breach, because he was not bound to deliver so many. But the judgment was affirmed, both because it was not certain, whether it amounted to any more, the account was so busy; and also because it was not possible in effect to mince the measure so, as it shall hit the just sum; as the odd hours are not counted

Noy. 444. Dy. in the year. (1)

55. Pl. 8.

(1) In making payments it is sometimes not possible, from the value and divisions of the current coin, to make the exact sum; if the payment be made as nearly as it can conveniently be made, the fractional part of a small coin may be neglected; it is a trifle. In calculating interest there may, and probably must, arise fractions not to be expressed in the legal money of account; these fractions are trifles, and may be rejected. But it seems that no sum large enough to be discharged in the current coin of the country is a trifle within the meaning of the maxim, that the law will not regard trifles. 5 Mass. 365, Boyden v. Moore.

HERRENDEN vs. PALMER.

A demand against a person on his own personal liability, and another demand on his liability in his representative character, cannot be joined in the same action.

[88 a]

Assumpsit

V. Hill. 1655.

Conge and Lawe's case, &c. Sty. 472. found Jenk. Cent.

296. Mo. 419.

HERREDEN brought an assumpsit against Margaret London. Palmer, administratrix of her husband, and declared that upon promise. her husband had bought of him gold and silver and Checq. Cham. pearl, and was indebted unto him for them 200 pounds, Rot. 2521. and she, after his death, had likewise bought of him pearl, for 27 pounds, and that upon accompt she was indebted both those sums unto him, and promised ment. Judgment for the plaintiff; and assigned for error, that the defendant was to be charged by two several actions, because she was charged in two manners, one in ber own right, and the other as administratrix, and therefore the judgment was reversed. (1)

pay- Cr. El. 406.

(1) So a count on a promise made by the defendant, as administrator, for money received by him, or lent to him, or on an account stated for money due from him, as such, cannot be joined with a count on a promise made by the testator. 4 T. R. 347, Jennings v. Newinan. I H. Bla. 108, Rose v. Bowler. 2 Bos. & Pul. 424, Brigden v. Parkes. 12 Johns. 349, Myer v. Cole. And a count in assumpsit against husband and wife who was administratrix, upon promises made by the intestate to pay rent, cannot be joined with counts upon promises by the husband and wife as administratrix for use and occupation after the intestate's death. 3 Barn & Ald. 101, Wigley v. Ashton. But a count in assumpsit on a promise made by the intestate may be joined with a count upon an account stated with the administrator, as such, for money due from the intestate. 1 H. Bla. 102, Secar v. Atkinson. Foster 98, Ellis v. Bowen. Ex'r. 6 Johns. 119, Whitaker v. Whitaker. 8 Johns 440, Carter v. Phelps. See also 10 East 313, Wilson v. Wiggs. In 1 Chitty 206, an opinion is expressed that a count upon an account stated by an executor as such, of money due from him as such, may, at the present day, be joined with a count on promises by the testator; but the authorities are the other way.

A misjoinder of counts is a fatal objection on demurrer, in arrest of judgment, or on error. 4 T. R. 347, Jennings v. Newman. 1 H. Bla. 108, Rose v. Bowler. 2 Bos. & Pul. 424, Brigden v. Parkes. 5 East 150, Henshall v. Roberts. 12 Johns. 349, Myer v. Cole.

As to what causes of action may or may not be joined, see Archbold's Civil Pleading 172. 1 Chitty 200. 2 Williams, Saund. 117. b. n. (2) where the result of all the cases is said to be that whenever the same plea may be pleaded and the same judgment given in all the courts; or whenever the counts are of the same nature and the same judgment is given on them all, though the pleas be different, as in the case of debt on bond and on a mutuatus, they may well be joined.

87. a. Ap. 181. Cr. Jac. 110.

Noy. 19. Co. 8.

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