Jenkins v Harvey
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1336
EXCH. OF PLEAS.
S. C. 5 Tyr. 326; 1 Gale, 23; 5 L. J. Ex. 17. See further, 2 Cr. M. & R. 393 (with note).
jenkins v. harvey. Exch. of Pleas. 1835.-The corporation of Truro in 1795 29j.Q..35", made a lease of the office of meter with all fees, emoluments, &c. arising from ! the measuring of coal, &c. imported. It was proved that they had been accustomed I for nearly sixty years to receive these payments upon all coal imported into the port. The learned Judge told the jury that he was not aware that there was any rule of law to prevent them from presuming the immemorial existence of the right from the modern usage ; but he did nob expressly advise them that they ought to make such presumption, unless some evidence to the contrary appeared, neither did he explain to the jury the nature of a port duty, and state, that as such the claim in question might be referred to a modern grant. The Court granted a new trial. [S. C. 5 Tyr. 326 ; 1 Gale, 23 ; 5 L. J. Ex. 17. See further, 2 Or. M. & R. 393 (with note).] Assumpsit. The first count in the declaration stated, that the borough of Truro in the county of Cornwall is an ancient borough, and the port of the said borough is art ancient port, and that the mayor and burgesses of the said borough and their predecessors for the time being, from time whereof the memory of man is not to the contrary, have had and exercised, and been used and accustomed to have and exercise, and still of right ought to have and exercise, by the mayor of the said borough, or the lessee or lessees, farmer or farmers of the [878] said mayor and burgesses for the time being, or their deputy or deputies, servant or servants, a certain ancient office or place of meter, for (amongst other things) the measuring of all coal imported by sea and brought within the limits of the port aforesaid to be there unloaded, delivered, or disposed of. And also that from time whereof the memory &c., there hath belonged, and still doth belong, to the said mayor and burgesses of the said borough, and their predecessors, or their lessee or lessees, farmer or farmers, for the time being, by reason of the said office, a certain ancient fee, reward, perquisite, or toll, for the measuring as aforesaid, and for the keeping and maintaining of measures, weights, and other machines and conveniences, for the purpose of measuring, i.e. the fee, reward, or toll of 4d. for the chaldron to be had and received for the measuring, or being ready and willing to measure by measure, each chaldron of coal aforesaid imported by sea and brought within the port aforesaid, and deliverable, or to be unloaded, delivered, or disposed of by measure, and the fee, reward, or toll of 8d. by the three tons to be had and received for the weighing, or being ready and willing to weigh, each three tons of coal imported and brought as aforesaid, deliverable, or to be unloaded, delivered, oil disposed of as aforesaid by weight: the said fees, rewards, or tolls to be received and taken by the said mayor of the said borough for the time being, or the lessee or lessees, farmer or fanners, of the said mayor and burgesses for the time being, or his deputy or deputies, servant or servants thereof. That heretofore, and before the making of the promise and undertaking therein after mentioned, to wit, on the 25th dijy of November, L79f , in the county aforesaid, the said mayor and burgesses, &c. being so entitled to the said fee, reward, or toll, and the said office as aforesaid, by a certain indenture then arid there made between Edward Lawrence, gent., then being mayor of the said borough of Truro, arid the burgesses of the said borough, [879] of the one part, arid the said Silvanus Jenkins of the other part, (the counterpart, of which indenture, sealed with the common seal of the said borough, the plaintiff's executrix as aforesaid brings into Court), the said mayor and burgesses, for the considerations therein mentioned, did grant, demise, lease, set, and let unto the said Silvanus Jenkins, his executors, administrators, and assigns, the said office or place of meter of the said borough, together with all advantages, profits, emoluments, fees, 1 d. M. & B. ago. JENKINS V. HARVEY 1337 perquisites and rewards whatsoever arising or accruing from the measuring of all corn and grain, coals, culm, and other such like commodities, that should be exported or iitported within the limits of the port of the said borough, in such sort and manner as the same was then or had been formerly paid and enjoyed, and all the rights and privileges thereunto belonging or appertaining, to have and to hold, exercise, and efijoy the said office or place of meter of the said borough, with the appurtenances as aforesaid, unto the said Silvarius Jenkins, his executors, administrators, and assigns, for and during and unto the full end and term of ninety-nine years fully to be complete and ended, if Louisa Bowen Jenkins, then aged four years or thereabouts, daughter of the said Silvanus Jenkins, should so long live. The said term to commence from and immediately after the death of one Peter Tippet and Edward Tippet his brother, or the surrender, forfeiture, or nther sooner determination of the then term, &c. of the said Peter Tippet of and in the same, determinate on their death ; he the said Silvanus yielding aud paying therefore as in the said indenture mentioned, 31., payable quarterly. That afterwards, and during the said term of ninety-nine years by the said indenture granted, and during the life of the said Louisa Bowen Jenkins, to wit, on the 1st of January, 1820, in, &c. the said Peter Tippet and the said Edward Tippet died, and that thereupon, by virtue of the said demise, the plaintiff as executrix as aforesaid, afterwards [880] and during, &c. to wit, entered into and upon the said demised premises, with the appurtenances, and became and was possessed thereof, as executrix as aforesaid, for the residue of the said term, so to the said Silvaims and his executors thereof granted as aforesaid, he the said Silvanus having previously and during, &c., to wit, on the 1st of January, 1804, in the county aforesaid, died, and having theretofore, to wit, on &c., duly made and published his lost will and testament in writing, and appointed the plaintiff executrix thereof, to wit, &c. That the said Louisa Bowen Jenkins is in life, to wit, &c. That afterwards and during the continuance of the said term, and the interest of the plaintiff as, executrix as aforesaid, and before the making of the promise and undertaking hereinafter in that count mentioned, to wit, on the 1st October, 1832, in the county aforesaid, divers, to wit, 9000 chaldrons, and 9000 tons of coal, had been and were by the defendant imported by sea in a certain ship or vessel, and brought within ;the limits of the port aforesaid, there to be unloaded, that is to say, the said chaldrons by measure, and the said tons by weight. The second count made claim to the same fee and reward, as the perquisite of an office of meter generully, without stating it to be an ancient office from time immemorial. Third count, reasonable fee. Fourth count, quantum meruit. Fifth count, borough of Truro an ancient borough; port of Truro an ancient port. That the mayor and burgesses of Truro were on the '26th November, 1795, and long before, and hitherto have been, used and accustomed to receive as of right a certain duty or toll (4d. per chaldron), called metage, of and from every merchant importing amongst other things coal by sea, and bringing the same within the limits of the port afore said. That the said mayor and burgesses, being so entitled, did on that day grant and demise unto the said Sylvanus Jenkins the said office and place of meter, with all advantages [881] and profits &c., as before. Title to present plaintiff, as before. Importation of chaldrons of coal by the said defendants to be unloaded within the limits of the port; by reason of which the defendants became liable to pay to the plaintiff the aforesaid duty or toll of 4d. upon every chaldron so imported ; and that the defendants, being so liable, promised to pay the sum of 1501. Sixth count- claims for toll of coal imported and unladen within the limits of the port of Truro, in which port the plaintiff had kept certain measures for the purpose of measuring the coal of such as were disposed to use them. Seventh count-for tolls, in respect of the defendant's having used the said weights and measures. Eighth count-for toll called metage, for and upon divers coals imported. Ninth count-for weighage, portage, and bushelage. Tenth count-for port duties upon goods and merchandize. Eleventh count-for tolls upon goods, &c. Twelfth count-for petty customs. With counts for work done and materials provided, the money counts, and a count upon an account stated. Plea-the general issue. The plaintiff in this case claimed, as the representative of a lessee under the corporation of Truro, to he entitled to a toll of 4d. per chaldron, under the name of metage, upon all coal discharged in that port. At the trial before Williams, J., at the Spring Assizes for the county of Cornwall, the plaintiff gave in evidence the 1838 JENKINS V. HARVEY 1 C. M. & R. 882 following documents:-An extract from Doomsday for the purpose of shewing that Truro was at that period in the possession of William Earl of Morton, the brother of the Conqueror, and Earl of Cornwall. A charter of Reginald Fitzroy, Earl of Cornwall, son of Henry I., addressed to his subjects, "tarn Angliois quam Cornubiensibus," and granting to his free burgesses of Truro "sac et soc," toll, &c. An inspeximus charter of 13 Edw. 1, confirming prior grants. A charter of the 31st Elizabeth, the governing charter of the borough, reciting that the port of Truro was part of the [882] port of Falmouth, and that the inhabitants of Truro endeavoured by all means to preserve the port, by...
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