Davies v Morgan and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1557
EXCH. OF PLEAS.
S. C. 1 Tyr. 457; 9 L. J. Ex. (O. S.) 153.
1C.&J. S88. DA VIES V. MORGAN 1557 davies v. morgan and otherh. Exch. of Pleas. 1831.-A bye-law of a corporation founded on a custom to exclude foreigners, and authorizing a distress for a penalty in case of a breach of the bye-law, without a previous demand and refusal of such penalty, is bad.-Corporators are not competent witnesses in support of a custom to exclude foreigners.-Declarations of deceased corporators ; are evidence in. support of a custom to exclude foreigners-Setnble.- Upon an application by a defendant for a new trial, the Court will refuse it i there be an essential defect in the defendant's evidence, although no objection was made by the plaintiff at the trial upon that point.-The recitals of a warrant of distress, put in evidence by the plaintiff to connect the defendant with a trespass, are not evidence for the defendant of the facts recited.-The circumstances which are necessary to make a document evidence, must be proved aliunde, and cannot be gathered from the document itself. [S. C. 1 Tyr. 457 ; 9 L. J. Ex. (0. S.) 153.] This was an action of trespass de bonis asportatis, for seizing two pairs of aboes. The defendants, after pleading not guilty, justified the trespass, in several special pleas, as wardens of the cordwainers' guild, in the town and county of Haverford-west, under a bye-law made in the reign of Elizabeth, and another similar bye-law made in the reign of James the First, of the corporation of the [588] town and county of Haverford-west, founded on a custom for the exclusion of foreigners. In those pleas which relied on the latter, the bye-law was stated as empowering the wardens of the cordwainers' guild to distrain the goods of foreigners exercising the craft of eordwairiers within the town and county, after a demand and refusal of a certain penalty; in those which were framed on the bye-law of the reign of Elizabeth, the power of so distraining was averred as existing without any mention of a previous demand and refusal of the penalty. The plaintiff', after joining issue on the plea of npt guilty, replied, as to the special pleas, after protesting certain averments, de injuria to the residue respectively. At the trial, before Holland, B., at the Spring Assizes for Pembrokeshire, the plaintiff, in order to connect the defendants with the trespass, put in the warrant of djistress, sighed by them, under which the shoes in question were seized; which Warrant recited, that there had been a demand and refusal of the penalty authorized by the bye-laws respectively. The case ultimately went to the Jury, upon the qjies-tlon of the existence of the custom to exclude foreigners, and of the bye-laws founded on such custom, as stated in the special pleas. The jury found a verdict for the plaintiff, negativing the custom. In Easter Term, John Evans obtained a rule for a new trial, on two grounds- First, that the verdict was against the evidence-Secondly, that the learned Judge had rejected evidence as to the existence of the custom, which ought to have been received, viz. the evidence of certain members of the corporation at large of the town and county of Haverford-west, as distinguished from the members of the corporation oir guild of cordwainers; entries in the books of the guild of cordwainers; and also the evidence of witnesses who were called to speak to their having heard from deceased members of the corporation at large, that foreigners had no right to exercise the craft of iCordwaiu-[589]-ers within the town and county of Haverford-west, and that they hcjd always been prevented from so doing. , It waa upt objected, at the trial, by the counsel for the plaintiff, that the defen-djants had ijot proved a demand and refusal of the penalty before the distress \vas levied; butj upon the Judge's report, the Court raised the question whether jany evidence had been given upon these points, and whether a new trial could be granted ia the face of such a failure o necessary proof in support of the defence stated in the special pleas. Sir W. Owen and Shepherd shewed cause. They contended, that the members of the corporation at large were properly rejected, because the corporation at large was entitled to half the penalty incurred by a breach of the bye-laws, and that the minuteness of the interest did not vary the rule; (a) that the books of the guild were (a) 1 Phil. Ev. 61...
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