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
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1796 |
| Date | 02 May 1796 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 1026
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
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. THE 1 B08. fe PUL. 8. the mayor and commonalty and citizens of the city of london v. the mayor and burgesses of the borough of lynn eegis, commonly called king's lynn, in the county of norfolk ; in error. May 2d, 1796, (In the House of Lords.) [See S. C. 7 Bro. P. C. 120, and below, 1 H. Bl. 206; 4 T. R. 130. See Londm Joint Stoek Sank v. Mayor of Londm, 1875-81, 1 C. P. D. 11; 5 C. P. D. 494; 6 App. Cas. 393.] If tolf be merely claimed of the individual members of a corporation exempt from toll, an action well lies on the writ De easendo quietum de theolonio in the name of the corporation. This action was commenced in the Court of Common Pleas by the present Plaintiffs in error, era the writ De essendo quietum de theolonio. [488] The declaration began by mentioning that the corporation of King's Lynn was summoned to answer why they required the citizens of London to yield toll within King's-Lynn. It then alleged that the city of London was a body corporate by prescription, by divers names, and for fifty years last, by the name of the Mayor, and Commonalty, and Citizens of the City of London, and that the citizens of London, amongst other liberties and privileges, had time out of mind enjoyed, and still were accustomed and ought to enjoy, the liberty and privilege that they and all their goods should be quit, and free of and from all toll, passage, lastage, and other customs, throughout England, and the King's ports, except his prisage of wines ; which liberties and privileges were alleged to be confirmed by divers acts of parliament. It then recited that the King, by writ under the Great Seal, commanded the corporation of King's Lynn to permit the citizens of London to be quit of such toll, and other customs, in King's Lynn, or to signify cause why not, but that the corporation of King's Lynn, not regarding the writ, had not signified to the King, as by the writ was commanded, andiinee-the writ had disquieted the citizens of London, and required of five of them who were named, and of other citizens of London, toll, passage, and lastage, not being priaage of wine, of their goods within King's Lynn and its port, in contempt of the King, and to the damage of the corporation of London, of 1001. The corporation of Lynn pleaded, first, that the citizens of London had not been accustomed, and ought not to enjoy such liberty and privilege of being free of toll and other customs, except the King's prisage ; secondly, that the five citizens named weri not citizens of London, as alleged. Issue was joined on both pleas. In Easter Term, 1789, the cause was tried at the Bar of the Court of Common Pleas, (see 1 H. Bl. 206), when a verdict was found for the corporation of London, on both issues, with one shilling damages, which damages were stated in the record to have been remitted by the corporation of London to the corporation of King's Lynn. The judgment was, that the citizens and all their goods should be quit of yielding such tall, &c. On this judgment a writ of error was brought in the King's Bench, and in Hilary Teem, 1791, the judgment of the Common Pleas was reversed. (See 4 T. B. 130.) [489] In consequence of this, the present Plaintiffs brought a writ of error returnable in parliament, and assigned general errors: to which the Defendants having rejoined, the Plaintiffs hoped the judgment of the King's Bench would be reversed for the fallowing among other Reasons : L Because the objection made below, by the Defendants in error, that the writ De aaend. quiet, de. theol. is a writ merely prohibitory, on which no action can be maintained, has no foundation. This sufficiently appears from the precedents of attachments on this writ given in the Register (258 b. and the following pages), which;run thus: Si A. fecerit, &c. "tune pone, &c. B. & C. &c." being manifestly proceed to bring in the Defendants to answer to an action. II.;Because another objection, insisted on by the Defendants in error, that the action, supposing an action to lie, ought to be by the individual citizens aggrieved, and not by the corporation of London, appears to be equally groundless. In Fitz. N. B. (227, E.) it ii laid down, that " all the corporation may bring the writ by the 1 BOft & F0L. WO. MAYOE, BTC. OP LYNN REGIS 1027 name of their corporation, and may have an alias and attachment thereupon, if need be;" by whfcb must be understood the process of attachment in the Register, neither (hat book nor Fitzherbert any where alluding to a criminal attachment on this writ. HI. Because the objection principally relied on by the Defendants in error was, that tbia action ia not maintainable where no distress has been taken ; which objection the Plaintiffs in error submit cannot be supported for the reasons, and upon the authorities following: It ia evident that De. essend. quiet, de theol. that Monstraverunt are no more than different names for the same writ, arising from a very slight variation in the form. The Register contains no such title as Monstraverunt: but several writs of Monatraverant are inserted in the title De essend. quiet, de theol. Burgesses may have Mongtraverant (Register, 259 b.), and tenants in ancient demesne may have the writ De theol.; and all the tenants may sue as in Monstraverunt (Fitz. N. B. 228, B.); so that every authority as to the one is an authority as to the other. Lord Coke (1 last. 100 a.) says expressly, that a man may have Monstraverunt before distress; by wbick he most be understood to mean the action of Monstraverunt, having classed it with other writs, on all of which [490} the remedy is by action. The Register contains several precedents of writs De essend. quiefr. de theol. and attachments on them, whieh do not state a distress; and other precedents of the same writ which do. Fitzherbert, (N( B. 226, I.) in the outset of the title, describes this writ to lie where the King's officer will demand toll. After giving the form of the writ, he goes on to state that the party may have an alias, pluries and attachment against those who grieve him. The natural meaning is, that those other writs are for a repetition of the same grievance complained of in the h'rst; and Fitzherbert must be guilty of great inaccuracy if to found the attachment a new and different injury must have been committed in the mean time. IV. Because this writ is analogous to other writs on which an action may be maintained, and judgment given on the right, without actual damage, (Co. Litt. 100); and such an establishment of the right seems peculiarly beneficial in a case like the present, of an exemption from toll claimed by a large body of persons, where the particular injuries may be very numerous, and in each instance so inconsiderable, that the individual! aggrieved not choosing to incur the expence of legal proceedings, may by continued acquiescence weaken or destroy the right of the corporation ; or if those who claim the toll will not distrain for it, but bring actions of assumpsit, to which only the general issue can be pleaded, neither the corporation nor the persons aggrieved have any means, if none are afforded by this writ, of stating their exemption on the record, and obtaining a decision which shall either establish or destroy their claim for the future. V. Because if the taking of a distress were necessary, this declaration does sufficiently allege it. By the precedent in the Register (258 b.) it appears that "quietos ease permittere 11011 curaverunt" is a sufficient allegation in the attachment. The averment in this declaration is, that the defendants did disquiet and did require toll; and it is impossible to contend that the declaration is bad in this respect, without contend ing that!the attachment also, which stands upon the authority of the Register, is equally bad. i VI. Admitting that the declaration ought in strictness of law, to have alleged a distress, the omission of it is mere form, and aided by the verdict. If a distress be necessary to support this action, the words "quietos esse permittere non curaverunt" in the attachment must be understood to mean disquieting by distress; and if the defendants had taken issue upon this same allegation in [491] the declaration, the Plaintiffs could not, supposing a distress necessary for the support of the action, have entitled themselves to a verdict without proving a distress. An actual distress cannot be more necessary to support this action than an actual impleading to support a warrantia chartae; and yet it is laid down in Fitz. N. B. (134, K.) that in warrant ia charts, if Defendant say that Plaintiff was not impleaded, be thereby confesseth the warranty ^ and plaintiff shall have judgment to recover it. By the same rule, if the present Plaintiffs had alleged a distress in their declaration, and the Defendants had denied it, they would hare admitted the exemption, and the Plaintiffs must have had judgment for the acquittal. Here the exemption is found by the jury ; and how can it be contended that the not stating a distress in the declaration, prevents the Plaintiffs THE MAYOR, ETC. OF LON DON t). THE 1 BOS ft PUL 49J. from recovering the acquittal, when, if the distress bad been stated and denied by the Defendants, the Plaintiffs, notwithstanding that denial, would be entitled to recover their acquittal? VII. Because, whether the exemption claimed by the city of London extended to all citizens, was a matter of fact to be determined by the jury on the trial of the...
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The Mayor and Commonalty and Citizens of the City of London-Appellants; The Mayor and Burgesses of the Borough of Lynn
... ... Mayor and Burgesses of the Borough of Lynn Regis, Commonly Called King's Lynn, in the County of ... point, see the reasons of the defendants in error in this case (which were drawn by Mr Hargrave) ... KING'S LYNN, IN THE COUNTY OF NORFOLK, Respondents [2d May 1796]. [If toll be merely ... , who now is, as his heirs, who should be kings in future, will be disinherited of all the ... ...