CH. V.] BY COMMISSIONERS OF FORFEITED ESTATES.

forfeiture vested in the Crown without office, and they refused to allow the enrolment of the certificate. (a)

However, by a subsequent statute, the Court of Exchequer was directed to proceed in such a case as upon an inquisition, and on a similar motion with a certificate, the Court of Exchequer then granted a scire facias. (b)

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of receiver's recogniz

ance by the

Barons of

the Exche

quer.

A receiver appointed by the Court of Exchequer Certificate under recognizance, whose estates were entirely situate in Ireland, became in arrear, and it was moved, that his recognizance might be transmitted by mittimus into the Court of Exchequer in Ireland, in order that process might issue upon it out of that Court. But the Barons directed that a bill should be filed on the foot of the recognizance in the Court of Chancery in Ireland, against the receiver and his sureties, to have an account; so that when issue was joined, the certificate of the recognizance here, would be evidence of it in the Court there. (c)

Whenever any matter arises within the realm which may be determined by a reference to the customs of London, the Recorder comes to the bar and certifies ore tenus, whether there does or does not exist such an usage. (d) This proceeding is of the earliest date (e); it is, in effect, the declaration of the mayor and aldermen by the mouth of their officer (f); and supersedes the

(a) Bunb. 14. Rex v. The Tenants of Lord Derwentwater. (b) Bunb. 16. n.

(c) Bunb. 249. Lord Castlecomer v. Lady Castlecomer. (d) Cro. Car. 517. 2 Saund. 231. 1 Burr. 248.

(e) 5 E. 4. 30. 21 E. 4. 16. Co. Litt. 74. a. 2 Ro. Ab. 579. (f) Co. Litt. 74. (a.) 9 Rep. 31.

Certifying

customs of

London by

Recorder.

trial by jury where the custom is denied by the adverse party. (a)

It seems, however, that this certificate cannot be allowed in cases where any personal profit to the citizens, as a body, comes in question; since, although no recent authority appears directly upon the point, there is a solemn judgment to that effect in Lord Hobart, on the principle that no one should be a judge in his own cause. To an action of trespass, the defendant pleaded a right in the mayor, citizens, and commonalty of London, to take wharfage-dues. The plaintiff replied a custom, that all freemen of that city were exempted from such a tax. The defendant denied the custom, and surmised, that it should be certified in the ordinary manner, and prayed the King's writ to the mayor and aldermen; upon which the plaintiff said, the issue ought to be tried by the country, and not by certificate: to which the defendant demurred. And Lord C. J. Hobart, who delivered the resolution of the Court, although he said that the case before them was more in the nature of prescription than custom, yet held clearly, that it was against natural right and justice to allow parties their certificate to try and judge their own cause. (b) In another case, not very long afterwards, where the Recorder of London had certified against a custom alleged regarding a manual trade, it was moved, that there had been a mis-trial, for being a custom which concerned all the citizens, it should have been tried by jury. But the Court said, that the defendant had consented in this case to the awarding of

(a) 2 Inst. 126.

(b) Hob. 85. Day v. Savadge. Jenk. 21.

the writ by joining issue on the custom, and besides, this custom did not concern all the persons of London, but those only who used manual trades, and so it was adjudged for the plaintiff. (a)

This point was partially brought before the Court of King's Bench in the last reign. It arose upon a rule calling upon the mayor and aldermen of London to show cause why a writ of mandamus should not issue, directed to them, commanding them to admit a certain person to the office of one of the auditors of the Chamberlain's and Bridgemasters' accounts of the city of London. On showing cause, a custom was alleged, that no person should serve that office for more than two years successively. And it was shown that the claimant had held the situation for two years, upon which the Court discharged the rule, saying, that no ground had been laid for the writ, that a mandamus was not to be had merely for asking it, and that a positive custom appeared to the contrary. (b)

This decision is not by any means at variance with that in Hobart. For in the former case the result immediately concerned the personal interests of a large corporate body; whereas in the latter, an internal regulation respecting one of their own offices was the matter in dispute; and although it may be well that they should not be invested with power to enforce their customs against the public at large, where they have any great stake at issue, it is reasonable, that they should enjoy

(a) Cro. Car. 516. Appleton v. Stoughton.

(6) 1 T. R. 423. The King v. The Mayor and Aldermen of London.

The custom must be found and certified.

suca usages, confirmed as they have been by act of parliament (a), in matters of less import, or such as relate to their own economy.

However, the Courts cannot take judicial notice of any such usage unless it be found and certified in due form. So that, where in trover for jewels the defendant said, that he had bought them in an open shop in London, which he alleged by the custom of that city, to be a market overt, it was holden, on a special verdict, that, as these customs are in all cases pleaded or found, and as in the present instance neither of those courses had been adopted, no notice could be taken of the defendant's allegation. (b) And so it was, where a libel had been brought in the Spiritual Court for the word "whore," and sentence given; after which a prohibition was moved for, stating a defect of jurisdiction, the word having been spoken in London, where, by the custom, an action lies. The Court denied the motion, observing, that the party came too late after sentence, and that it was a rule not to allege matter at that stage dehors the libel as a ground of prohibition. As, therefore, the custom did not appear, there was no ground to imply a defect of jurisdiction. (c) Consequently, an affidavit verifying the custom is necessary on such occasions. (d) Yet the

(a) 7 R. 2. c. 2.

(b) 2 Str. 1187. Hartop v. Hoare. 1 Wils. 8. S. C.

(c) 1 Str. 187. Argyle v. Hunt. Fort. 347. S. C. Cook v. Wing field. S. P. cited in And. 300. Driver v. Driver. And. 304.

(d) 1 Str. 188. Andr. 8. in Surby et ux. v. York. Id. 304. Driver v. Driver. 4 Burr. 2032. Theyer v. Eastwick; and see Cowp. 330. Caton v. Burton. Id. 422. Full v. Hutchins.

Court have such a private knowledge of these rules, as not to put the party to his affidavit upon motions (a), unless, indeed, the other party will insist upon it, which is not usually the case. (b) Nevertheless, if the Recorder have certified any particular custom, the Court are bound to take notice of it.

Thus, the custom of foreign attachment having been certified, the Court held, on a motion for a prohibition to the mayor's court in London, that they were bound to recognize such custom judicially on account of the certification, although in the particular case, they discharged the rule, because the party applied for relief after judgment, there being neither a bill of exceptions, nor a special verdict, and so was too late; and the Court would not suffer the custom to be certified a second time. They would have held upon that occasion that trustmoney was not within the custom, and could not, consequently, be attached (c) On the whole, therefore, the rule seems to be, that where the Recorder has certified an usage ore tenus, the Court must notice it judicially. Where such an usage exists but not certified, the party wishing to avail himself of it must plead or verify it upon oath; upon which the other side probably denies it, and a writ of certiorari issues. Where, however, the opposite party chooses to take issue upon it, he cannot allege afterwards the want of a certification. (d)

1

The ceremony is performed by the Recorder coming Form. to the bar in a purple cloth robe faced with black velvet,