Bridgman I Trinit that Jacob wood against Searl and jeo in a action of  trespass for that the defendant the of December Jacob ten hide of leather of  the plaintiff amount to the value of at Tiverton do take and carry away ad  damnum c the defendant as to the force and arm plead not guilty and as to the  residue they say that the city of Exeter be and time out of mind be a ancient  city and that within the say city there be and for all the say time be a  society of the art of cordwainer incorporate by the name of the master  assistant warden and commonalty of cordwainer of the city of Exeter and that  the say master assistant and warden have use for all the say time to make  bylaws for the government and profit of the say society and to impose  reasonable fine and punishment upon the breaker thereof and that the of July  elizab the master assistant and warden do ordain that no person burgess I or  foreigner not be a brother of the say society shall make sell or offer to sell  or procure to be sell within the aforesaid city of exon Bridgman I er p the  county or liberty thereof any boot shoe paritofies pump or startops or any  other ware belong to the say art under pain of forfeit to the say master and  warden for the time be for every offence such sum not exceed S as shall be  assess by the master warden and assistant or the great part of they and that  if any person of the say society or any other exercise the say art or any  thing concern the same inhabit within the say city or the county or liberty of  the same who shall break the say order shall refuse to pay such sum as shall  betassessed upon true proof first thereof have of the breach of the say order  that it shall be lawful for the say master assistant and warden or any three  of they take with they a constable bailiff or sergeant of the mace or other  fit officer of the king to enter into the house booth shop warehouse or cellar  of such person so refuse and there by the discretion of the say master  assistant and warden or the great part of they to distrain any of their good  then be within the say house c for the say sum forfeit so that it do not  exceed the Triple value of the sum forfeit and to detain the same yet  nevertheless if the owner within thirty day shall satisfy the penalty then  they shall redeliver the good and if he do not satisfy that then the say  master warden and assistant or the great part of they have power to appraise  the good take by the oath of six person and thereupon to sell they and to  restore the surplusage to the owner and the defendant say that at the say time  in which c and time out of mind there be and ought to be a master two warden  and twelve assistant of the say society within the say city and no more and  that the say Edward the six of December and before and ever since be master  and the say William and Thomas pain be warden that the of July Jacob the  plaintiff at the say city then be a inhabitant within the say city and no  brother of the say society do make diverse shoe and they there to sale do  expose and that the say master and warden and one I g t king r I W t Bridgman  I king t c g and I g be seven and the major part of the say assistant the  thirty of July the Jacob do impose upon the plaintiff S d for the say offence  and they say further that the plaintiff commit the like offence ibis seven of  October Jacob and S d impose by the master warden and assistant and the like  offence the of novemb Jacob and S d impose by the master warden and eight of  the assistant and the like offence the second of December Jacob and S d impose  the three of December the same year by the master and warden and nine  assistant all which sum do amount to S d that the six of December the Jacob  the plaintiff have notice of the say sum so impose and although he thereupon  pay S parcel thereof yet he do refuse to pay the residue which refusal the of  December be duly prove before the say master and warden wherefore the of  December Jacob the master warden and assistant take with they John Sowland a  sergeant of the mace do take the say ten hide in the say city in the name of a  distress and take they away detain they for thirty day after the say distress  and because the plaintiff do not pay the residue of the say S d nor agree for  the same the say master and warden and t b c g m a t king I g m b king I W t  and r t be the major part of the assistant after the say thirty day videlicet  Jan Jacob at the say city do cause the say hide to be appraise by the oath of  r S c six approve man of the say city who appraise they at and the say  defendant and Thomas pain and the major part of the say assistant do sell they  for and they say that the surplusage amount to S d and no more which the say  William and Thomas pain with the assent of the master and great part of the  assistant before the suit to wit the seven of January in the same year at the  say city do offer to pay to the plaintiff but he refuse to accept thereof  without hoe that the defendant be guilty at Tiverton or any other place out of  the say city of Exeter upon which plea the plaintiff demurrer and I conceive  that judgement ought to be give for the plaintiff and herein I will not stand  at this time to argue whether the custom will warrant this bylaw because there  have be a resolution in the case in the Rep fol for London only I observe that  the custom of London be confirm by Act of parliament but so be not the custom  of Exeter Bridgman I er p but admit that the custom will warrant this bylaw to  restrain a legal trade or art within the say city yet I conceive this bylaw be  utter void for three cause and if it be good yet have not the defendant pursue  the same in take and sell of the good and that for two cause and as to the  first the defendant have exceed their custom in the extent of this bylaw as to  the place for the society of the art be allege to be within the city of Exeter  and then they allege the custom to be that they have use to make bylaws for  the better government and profit of the say city so that all the custom be  confirm to the city but the bylaw do exceed this for it be that none shall  make sell or offer to sell any shoe c within the city or the county of exon  the which be not warrant by the custom as in Rep chamberlain of London case it  be ordain that if any Bridgman I citizen or stranger shall send any cloth to  sell within the city before it shall be bring to blackwellhall to be view and  search this be resolve to be good although it do bind a stranger but the  reason thereof be give because the offence be commit within the city whereupon  I observe that they can make no order to extend without the city this bylaw do  exceed their power in the thing prohibit and that in two thing first that none  shall make any boot shoe c within the city or county whereby every man be  restrain to make such thing for his own use or for his master or family and  such restraint be clear against law and reason for although that company of  trade in city and town be allow by the law yet they can by any custom restrain  a mail from make any thing pertain to their art for his private use and  therefore if this bylaw have be that none shall use the art of a shoemaker  within the city this have be good but to restrain any that he may not make  shoe for himself within the city this be void vide cook Rep wagon case where  it be resolve that he may make candle for his own use and so every one may  bake and brew for their own use furthermore the defendant have not allege any  custom that none shall make any shoe c within the city c except those of the  society but only that they may make bylaws for the good government and profit  of the society of the art and the make of shoe for one private use be nothing  concern their society and this be prove by the resolution in the say case and  by the statute of the five of elizab that none shall use any art in which he  have not be educate as apprentice for seven year yet it be lawful for any to  bake or brew or to make any manufacture for his private use without any  offence to the statute so cook Rep sir George farmer case he as lord of the  manor of Torcester do prescribe to have a bakehouse and no other baker shall  sell bread there this be a good custom but to restrain any from bake for  himself can be a good custom and the case of the tailor of Ipswic Rep fol  order that none shall use the trade of a tailor until he be present to the  master and warden and allow by they yet one may make clothes for his master  and family in case the say constitution be good this bylaw do restrain other  person to use their art for it be that none shall do any thing pertain to the  art of shoemaker and it be apparent that many thing do pertain to the art of a  shoemaker which be to be do by other artificer for all thing belong to the art  which of necessity must be use with the art and without which the art can be  use as leather which be to be make by the tanner last which be to be make by  the lastmaker auls by the smith thread and diverse other thing and all these  by this bylaw be prohibit not only to be sell but also to be make by any not  be of their society the penalty impose by this bylaw be not warrant by the law  nor by their custom for that ought to be reasonable and ought to be express to  the end that the court may judge whether it be reasonable or not and therefore  it be resolve in wagon case that the pain ought to be reasonable in respect of  the manner thereof I and therefore it ought not to be by imprisonment for that  be against great Bridgman I Charta cap as it be adjudge in clark case Rep fol  in regard of the quality and therefore it be much debate in wagon case if the  penalty of be reasonable or not but here no certain penalty be set down but  leave to the discretion of any of the shoemaker of Exeter and that be against  the course of all law for when a law be make it be necessary that the penalty  thereof shall be know to the end man may not offend Bridgman I er p but admit  this order to be good yet have not the defendant pursue the same in the take  of this distress and that for two reason they have distrain before their time  for the order be that if any refuse to pay the sum assess that then upon due  proof thereof they may distrain c and then they plead that the refusal of the  plaintiff to pay the same be duly prove before the master and warden which be  insufficient for when it be say upon due proof this be intend upon proof by  verdict as in Edward on a bind with condition that if the obligor prove that  it be the will of a that shall make a estate to the obligor c this proof must  be by verdict but if it be to be prove before I S there it be sufficient to  produce witness that will testify the same and so in the four and five of  queen mary where Buckland be bind to the Lord ewer to produce before the say  lord sufficient witness to discharge a certain debt due by b to the lord and  he plead that be produce W and a before the say lord and that they prove that  he do not owe the say debt and agree to be no good plea because he do not show  bow the proof be make before the say lord so that this plea be utter  insufficient because no such proof can be make before the master and warden as  be intend by the order because the defendant have not show how the proof be  make so that the court may judge whether it be sufficient or not and so in  Edward the Lord lisles case upon a bind that if the defendant show sufficient  discharge of a rend c who plead that he do offer to show a sufficient  discharge and agree to be no plea for he ought to show what discharge that the  court may judge thereof so in the nine report case of the abbot of Strata  Marcelia fol in a quo warranto the defendant plead that the abbot have and use  diverse liberty which he can not have without a charter and resolve no plea  unless by reason of the statute of the of h cap for revive of liberty the  order be that upon refusal to pay the penalty and upon proof thereof the  master c may enter into the house booth shop warehouse or cellar of the to hit  and there to distrain any of his good c and the defendant have not aver that  these good be take in any of the say place but only at the city of Exeter and  at last it be adjudge that the plea be not good