The City of London against Wood
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | High Court |
English Reports Citation: 88 E.R. 1592
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER
1592 HILARY TEEM, 13 WILL. 3. AT GUILDHALL 12 MOD. 689. at the sittings after hilary term. In the Thirteenth of William the Third. At Guildhall, before Sir John Holt, Knt., Chief Justice. Sir Edward Ward, Knt., Chief Baron. Sir Henry Hatsell, Kiit., Senior Baron. / ?/£ò :/XG: ?v?. ~ ,ä ,(ä ? 4, [669] case 1070. the city of london against wood. Debt on a by-law in the Mayor's Court for refusing to serve as sheriff.-Ante, 269. In an action brought in the Mayor's Court against Wood for four hundred pounds as a forfeiture, for that he being duly chosen sheriff did not serve, or otherwise discharge himself by fining, &c. according to the Act of Common Council made in the seventh year of Charles the First, it appeared the plaint was levied in the Court of the Mayor and Aldermen on the fifteenth of November, and that the defendant gave bail for his appearance the next day, viz. the sixteenth; and instead of continuing from the fifteenth to the sixteenth, that day is given from the said fifteenth to a certain day in June; and then the entry is, that the cause was removed by habeas corpus to the Common Pleas, and sent down by procedendo. And then the defendant pleaded "nil debet," " et hoc parat. est verificare, ut liber homo of the city," and offers to bring six freemen of the city to be his compurgators; and a demurrer to this plea; arid judgment against the defendant; of which this error is now brought before the said Judges commissioners. Hatsell, one of the Barons of the Exchequer, who argued first, divided the case into four points : First, whether wager of law held in the case 1 Secondly, whether there were a discontinuance ? Thirdly, in case there were a discontinuance, whether it was now amendable by the record in the Mayor's Court, supposing that to be right? Fourthly, whether this action be brought in a proper Court scilicet, that of Mayor and Aldermen, it being for a forfeiture to the city 1 And per luy, wager of law lies not here, for that never lies but in respect of the weakness and inconsiderableness of the plaintiff's ground or cause of demand ; and when the ground of his demand is so small and weak that the defendant's oath, and that of compurgators, may be looked upon as an equal consideration with it, then a wager of law may well be ; but never where the foundation of the demand is of greater regard than the defendant's oath, then it never lies. 1 Inst. 292, it lies not where there lies a specialty or deed to charge the defendant; [670] but only where the cause of action is only a bare parol transaction, which as it may create a fluty, yet it is such a duty as may be discharged in the same manner that it is contracted ; and the reason of it is grounded upon the presumption of law, that one for no worldly consideration will forswear himself; and it is an argument that the matter is of no great value, that the plaintiff did not take care to have better security for it than the slippery memory of man, and the incertainty of a verbal contract: so that since the lien or tie was so light, it is no wonder if the law will lightly discharge it. Another reason of a wager of law is laid down in 2 Inst. 45 b. that the defendant might have witnesses of his discharge, who might be dead, as none can keep his witnesses alive ; and since nothing appears to charge him but a parol agreement, which might have been discharged with the like solemnity, which the defendant might have proved if his witnesses were not dead, for that reason too the law thought convenient to admit of a discharge by wager of law. Nor is there any hardship in all this, because the plaintiff might have prevented it by providing a specialty ; but he held the first reason to be the only true reason, viz. the feebleness and exility of the ground of the plaintiffs demand; and it suffices, that the nature of the defendant's discharge be of equal validity with the ground of the plaintiff's charge. And wager of law is allowable in five cases : first, in debt upon simple contract, which is the common case ; secondly, in debt upon an award upon a parol submission; thirdly, in an account against a receiver for receipts by his own hands; fourthly, in detinue, though the bailment 12 MOD. 871. HILARY TERM, 13 WILL. 3. AT GUILDHALL 1593 were by the hands of another ; fifthly, in an amerciament in a court-baron, or other Inferior Courta not of record. And in every of these instances the action is grounded npon a feeble foundation, and of small consideration in law. The case of an amerciaraent in court-baron is nearest to the present case of any, though nothing like it, for such araerciaments are generally for private matters, as inclosing or overcharging of commons, or other private transgressions; but this offence, for which the penalty is laid here, is of a public nature, and concerns the administration of justice in the service of Sheriffs of London and Middlesex. And though this penalty be inflicted by an Act of the Court of Common Council, which is no Court of Record, yet it is a Court so vastly different from courts baron, or such other petit Courts, that in 4 Inst. 245, my Lord Coke does not stick to [671] compare it to the Court of Parliament, where the mayor and aldermen represent the Upper House, and the commonalty the House of Commons. And what immediately concerns the good government of London, does very nearly concern the whole kingdom ; of which vide 8 Co. 187. The King, as fountain of justice, has the nomination of sheriffs all over the kingdom; and since he, by his patent, has delegated that power for London and Middlesex to the City of London, as incident thereto, they must not only chusa sheriffs, but may also compel them to serve ; for otherwise here would be a failure of justice; and the consequence of that in these two counties would be of extreme danger to the whole kingdom. The office is of very great concern, for he has the custody of the county : besides, it concerns the public revenue, part whereof he collects; and it is given for a reason in Blade's cane (), that a wager of law lies not in quo minus, because the King's revenue is remotely concerned, upon suggestion, that the plaintiff is indebted to the King, and less able to pay him by the defendant's detainer of his debt; ergo a pari in an action concerning the acceptance of an office relating to the King's revenue, he ought not to be received to his wager of law. Besides, here is a contempt in the defendant, which he ought not to be allowed to swear off. Also all the matters that charge him are facts notoriously known, in which there never are any precedents of wagers of law. Again, when the matter of the charge is pregnant with matter of law, there ought to be no wager of law, for that were to swear to the law ; as in debt against husband for clothes taken up by the wife, the husband shall not wage his law, because it is a point of law, whether he be liable or no, viz. whether the clothes were for necessary apparel of the wife, without which he is not liable. Then the very custom of London excludes wager of law in some actions, as in debt for diet; 1 Edw. 4, 6 ; Bro. Examination, 18 ; the statute of 38 Edw. 3, c. 5, before which no wager of law could be against a Londoner; Br. Ley G-ager, 94. Another reason against the waging law here is, that by custom of London the common council may make by-laws for the better ordering of the city ; and that custom is confirmed by Magna Charta, and sundry other Acts of Parliament. So that this being a penalty so warranted is of too high a nature to be avoided by a wager of law. Fide 1 Vent. 196, 261. [672] But another error assigned is, that this action is brought by the Mayor and Commonalty of London, in a Court holden before the mayor and aldermen ; and the record says, that the Mayor and Commonalty of London came before that Court, that is, the mayor and commonalty came before the mayor and aldermen ; so that the mayor is both Judge and party, a thing against natural justice. And this I hold to be error; for though the mayor be not sole plaintiff, nor sole Judge, yet he ia essentially plaintiff and Judge; and the case of The Bailiff of Norwich, in 2 Ro. Ab. 93, differs from this : one brings an action before the bailiff and steward of the town, and pending the action the bailiff dies, and the plaintiff is made bailiff, and then judgment is given for him; that judgment is not erroneous, because it is given by the Court, and not by him alone; for there the action is originally well brought, and the plaintiff was not bailiff at the time of the action brought. But besides, I do not take the opinion there to be the resolution of the Court; vide 3 Cro. 320, that it is not error, except it be objected to and over-ruled ; but surely that is a hard doctrine; for it might so happen, that he had not an opportunity of pleading it below ; but my reason (a) 4 Co. 92. 1594 HILARY TERM, 13 WILL. 3. AT GUILDHALL 12 MOD. 673. for that judgment is, that it did not appear on the record to be the same person. But here it does appear on the record to be the same person; and that being so, though the action were originally well commenced, yet I take it to be error. If one of the aldermen of London should bring an action before the mayor and aldermen, and recover, that may be a good judgment, because it may be a Court of Mayor and Aldermen without him, and the plaintiff would not be an essential part of the Court; vide 13 Hen. 8, 12. 14 Hen. 8, 2. Master and contrary of an hospital may present one of the brothers to a benefice, but they cannot present the master, or infeoff the master : for to that purpose the brother who is presented or infeoffed is severed from the body ; and though the master have a double capacity, viz. a natural and a political one, yet in one capacity he cannot do an act to himself in the other...
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