The Mayor and Burgesses of Lynn Regis, otherwise King's Lynn, Norfolk, against The Mayor, Commonalty and Citizens of London
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1791 |
| Date | 28 January 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 933
IN THE COURT OF KING'S BENCH
S. C. 6 T. R. 778; 1 H. Bl. 206. Referred to, London Joint Stock Bank v. Mayor of London, 1875-81, 1 C. P. D. 11; 5 C. P. D. 494; 6 App. Cas. 393.
the mayoe and burgesses of lynn regis, otherwise king's lynn, norfolk, against the mayor, commonalty and citizens of london. In Error. Friday, Jan. 28th, 1791. An action will not lie on the writ de essendo quietum de theolonio until the plaintiff's goods be distrained for toll. [S. C. 6 T. E. 778; 1 H. Bl. 206. Referred to, London Joint Stock Bank v. Mayor of London, 1875-81, 1 C. P. D. 11 ; 5 C. P. D. 494; 6 App. Gas. 393.] This action was brought in the Court of Common Pleas. The declaration (a)a alleged, that the plaintiffs (below), among other liberties and privileges, had immemori-ally enjoyed this privilege, namely, " That the citizens of the said city, and all their goods, should be quit and free of and from all toll, passage, and lastage, and other customs, throughout the whole kingdom of England, and the ports of the lord the King, except only his due and ancient custom and prizes of wines;" which liberties have been confirmed by divers Acts of Parliament. That the King by his certain writ commanded the defendants (below) to permit the plaintiffs to be quit of yielding such toll, Ac. as aforesaid or on a certain day past, to signify to him cause wherefore they had not executed his commands, yet that the defendants, not regarding the writ, had not signified to him, &c. and since the time of the said writ, ss. on the 1st December 1787, disquieted the said citizens on the occasion aforesaid, and then and there required of 0. Denton [and four other persons by name], citizens of, &c. and of other citizens, &c. tollf &c. within their said borough, &c.; in contempt of the King, and to the damage of the said mayor, commonalty, [131] and citizens of 1001. &c. The defendants, in their first plea, traversed the right of exemption claimed by the plaintiffs; and, in the second, pleaded, that O. Denton, and the four other persons early years of life a truly valuable husband and a friend. He could not be called a friend to his country ; for he changed his principles for a red ribband, and voted for that pernicious project, the Excise." The information concluded, " To the great scandal and reproach of the name and memory of the said Sir Charles; to the great injury of his family and posterity; and to the dishonour of our lord the King, &c." (a)1 Cowp. 672. (a)2 The writs, and the declaration, are stated at length in H. Blackst. Rep. C. B. 206, together with the subsequent proceedings in the Court of Common Pleas. 934 LYNN CORPORATION V. LONDON CORPORATION 4 T. R. 132. named in the declaration, were not citizens of the said city. On both which pleas issue was joined. At the trial, the jury found a verdict for the plaintiffs on both the issues, and gave Is. damages; which damages were remitted on the record : and the Court of Common Pleas gave judgment, " That the citizens of the said city, and all their goods, be quit of yielding such toll, passage, lastage, and other customs, as aforesaid, of their goods and things, in the said borough and port thereof; and the said mayor and burgesses of the said borough in mercy," &c. The defendants removed the record into this Court by a writ of error. This case was argued in last Trinity term, by Runnington, Serjt. for the plaintiffs in error, and Gibbs for the defendants; and again on this day, by Le Blanc, Serjt. for the former, and Adair, Serjt. for the latter. For the plaintiffs in error, it was objected, first, that the writ was only a prohibitory writ, which was issued by the Crown to its own bailiffs and servants, and not a remedial writ, on which the parties could plead. Fitzherbert (a)1, treating of this writ, seems so to have considered it; and the instance he gives is, that of a mere command by the King to his bailiffs, "The King to his bailiffs of J. greeting:" and commenting on the writ, he says, "And upon that he may have an alias, a pluries, and an attachment." The only consequence, therefore, of not obeying the pluries is, that an attachment may issue against the party to whom the writ is directed, for his contempt; but no further proceedings can be had on it. Finch also considered this only as a prohibitory writ; for he gives it as one of the instances (b)1 in his chapter " of certain special writs wherein no process lieth" (c)1; and of them he says, " Beside which (namely, the common actions) there be certain other originals out of Chancery, which are (as it were) special anomalies and exceptions from the former; being not deductory to bring any matter into plea or solemn action, but only commendatory or prohibitory to do or leave something undone : and, therefore, no process at all lieth in these writs; but only an attachment upon a contempt, for not executing or [132] obeying them." Lord Ch. B. Comyns too, treating of the remedies which a party who is exempted from paying toll has, says, there are two remedies (a)2 : first, by writ de essendo quietum de theolonio, if he who ought to be quit of toll be charged ; 2dly, by action, if the toll be taken. He therefore distinguished between the cases of demanding and taking toll; and was of opinion, that in the latter only could an action be maintained. Fitzherbert, in his comments upon the writ of monstraverunt, which was framed for the benefit of tenants in ancient demesne, says (b)2, " The plaintiffs may count and recover damages ; " but in his comment on the writ in question, he says nothing respecting the pleadings upon it. But even if this were a writ on which the plaintiffs could count, they have not stated any injury on the record for which the law gives redress. The only matter alleged as a grievance is, that the defendants (below) required, not that they took, the toll from the plaintiff; but this is not a damnum for which the law will give an action ; an actual injury must be stated. Besides, this count is on the pluries, not on the attachment; and even in monstraverunt the count must be on the attachment;- 2dly, but if any action could be maintained in this case, it should have been a qui tarn action. 4 Com. Dig. title Prohibition, J.(c)2; and 12 Rep. 61. It is laid to the contempt of the King, and to the damage of the plaintiffs (below):-3dly, at all events, the action should have been brought by the party grieved. Fitzherbert (d) says, the particular person, who is grieved, may sue forth the writ: and commenting on the writ, "de libertatibus allocandis"(), he observes, that "those writs are of several forms, and may be sued by a body corporate, or by a single person, as the case shall happen." Now, here the Corporation of London sued out the writ, and alleged a grievance to five particular persons, from whom the toll was demanded. Then, even if the corporation might have sued out the writ, the individuals, who were injured, should have counted :-4thly, the count ought to have stated by what description of citizens the exemption is claimed. All the citizens, whether resident or not, cannot be entitled to the exemption; Waller v. Hanger, 3 Bulstr. 1. It should have been claimed for the resident citizens only. [133] For the defendants in error it was contended, in answer to the first objection, (a)1 Fitz, N. B. 518, 4to ed. (6)1 Finch, 506. (c)1 Finch, 490, ch. 48. (a)2 5 Com. Dig. 520, title, Toll. H. 1. 2. (J)2 Fitz. N. B. 34. (e)2 Page 481. (d) F. N. B. 521. (e) F. N. B. 520. 4T. B.134. LYNN CORPORATION V. LONDON CORPORATION 935 that it appeared from the precedents of proceedings on this writ, as well as from analogy to other cases of a similar nature, that this was a remedial writ, on which an action might be maintained. In the Register, 258 b. the writ, the alias, pluries, and attachment, are set out at length. The latter begins, as the writ in trespass, " Si fecerit te securum, &c. tune pone," &c. In Ryl, Plae. Parl. 13, the proceedings on this writ are stated, where an issue was directed on the action commenced on this writ. There is also another instance in Madox's Firma Burgi (a)1 of an action, which was supported on this writ. That indeed was a qui tarn action ; but it shews that this is the subject of some action, and furnishes a decisive answer to this objection. There are several other writs of the same nature with this, on which actions may be maintained, though the plaintiff be not injured ; one of which is that of monstraverunt ; between which and the present there is no difference. They resemble each other so strongly, that when the writde theolonio is sued out by the tenants in ancient demesne, it is exactly like the monstraverunt: Fitz. N. B. 521, speaks of them both together. Neither the writ de theolonio or the monstraverunt is directed to the sheriff; there is an attachment in both ; and it is admitted, by the passage from Fitzherbert (b)1, that in monstraverunt the parties may plead to issue. And in 2 Irist. 654, 5, there is a precedent of a judgment on that writ. The attachment in both is not for a contempt, but is...
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The Mayor and Commonalty and Citizens of the City of London v The Mayor and Burgesses of the Borough of Lynn Regis, Commonly Called King's Lynn, in the County of Norfolk; in Error
...Borough of Lynn Regis, Commonly Called King's Lynn, in the County of Norfolk In Error See S. C. 7 Bro. P. C. 120, and below, 1 H. Bl. 206; 4 T. R. 130. See London Joint Stock Bank v. Mayor of London, 1875-81, 1 C. P. D. 11; 5 C. P. D. 494; 6 App. Cas. 393. 1626 THE MAYOB, ETC. OF LONDON V. ......