The Mayor Commonalty, and Citizens of the City of London against The Mayor and Burgesses of the Borough of Lenne Regis, Commonly Called King's Lynn, in the County of Norfolk
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1789 |
| Date | 06 May 1789 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 119
IN THE COURT OF COMMON PLEAS
S. C. 4 T. R. 130; 1 Bos. & P. 487. 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.
lH.BL.ao8. LONDON V. LYNN 119 [206] cashs argued and determined in the court of common pleas, in easter term, in the twenty-ninth year of the reign of george III. the mayor, commonalty, and citizens of the city of london against the mayor and burgesses of the borough of lenne regis, commonly called king's lynn, in the county of norfolk (a). Wednesday, May 6th, 1789. The writ de essendo quietum de theolonio, is not merely prohibitory, but remedial, on which the parties may plead to issue on a question of right. A corporation to whom it is directed cannot be attached for contempt in their corporate capacity for not returning it; but an attachment in the nature of a pone is the proper remedy to compel them to appear. The Court will not grant a trial at Bar, in an issuable term. In an action by one corporation against another, each may inspect so muah of the books and records of the other as relates to the subject in dispute (c). Freemen of the City of London have a right to be exempt from the payment of all tolls and port duties throughout England (except the prizes of wines), in whatever place they reside, and though they have obtained their freedom by purchase. [S. C. 4 T. R. 130; 1 Bos. & P. 487. 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.] This waa an action on a writ (6) de essendo quietum de theolonio, of which the following is a copy, with the alias and plurifes. "George the Third by the grace of God, &c. To the Mayor and Burgesses of the Borough of Lenne Regis, commonly called King's Lynn, in the county of Norfolk, greeting: "Whereas our City of London is, and from time whereof the memory of man is not to the contrary, hath been an antient city, and the citizens of the said city, during all the time aforesaid, have been a body corporate and politic, in deed, fact and [207] name, by divers names of incorporation; and for divers, to wit, fifty years last past, have been a body politic and corporate, by the name of the Mayor and Commonalty and Citizens of the City of London: and whereas also, amongst other the liberties, free customs, and privileges, from time immemorial used and enjoyed by the said citizens, they the said citizens, from time whereof the memory of man is not to the (a) [The judgment of this Court was reversed on error in K. B. upon the ground that the writ de essendo quietum de theolonio was not a writ of prevention or quia timet, and would not lie upon a mere claim of toll. Mr, J. Buller was also of opinion that the exemption did not extend to non-resident citizens, see 4 T. R. 130. Upon this reversal a writ of error was brought in Dom. Proc. The reasons of the plaintiffs in error were drawn up by Mr. Hargreave. Jurid. Arg. vol. ii. The opinion of the Judges delivered to the House by the Lord Chief Justice Eyre, decided the following points :-1. That this was not merely a mandatory writ, but that proceedings might be maintained upon it to determine the rights of the parties. 2. That the citizens of London, in their corporate capacities, were the proper parties to sustain the pro ceedings. 3. That a claim of tolls was sufficient without further damage to support the writ. The question whether non-resident freemen were entitled to the exemption was not decided, the Judges considering that it could not be raised upon the record, see 1 Bos. & Pul. 487. 7 Bro. Parl. Cas. 120, 2d edit.; but in the subsequent case of The Corporation of Liverpool, which was tried at the Bar of the Court of Exchequer in Easter term 1799, the jury, under the direction of the Court, found that a freeman of London is not exempt from toll unless he be resident inhabitant, and in scot and lot. 1 Bos. & Pul. 522 (n).] (c) [But see The Mayor of Southampton v. Graves, 8 T. R. 590, where the Court of King's Bench refused a similar application. A party however within the operation of a by-law though not a member of the corporation, is entitled to an inspection of the by-law in the corporation books. Harrison v. Williams, 3 B. & C. 162.] (b) So denominated in Regist. Brev. 258 b. As this writ is not in common practice, it is stated at length. So also are the declaration and pleas. 126 LONDON V. LYNN 1 Hj BL Jo. contrary, have been used and accustomed to have and enjoy a certain antient liberty and privilege; that is to say, that tbe citizens of the said city, and all their goods, should be quit and free of and from all toll and passage, and lastage (a) and other customs, throughout the whole kingdom oi England, and tbe ports of the seas (except only our :due and antient custom, and prizes of wines), all which said liberties and privileges have been confirmed by divers charters of our progenitors, and also by divers. Acts of Parliament. Nevertheless you require the said citizens, as it is said, to yield toll, passage, lastage, and other customs to you, of their goods and things within the said borough and the port thereof, and do many ways unjustly disquiet them on that occasion, to the great damage of the said citizens as we have received information from their complaints: we willing that no injury should be done to the said citizens, command you, that if it be so, then desisting for the time to come-from bringing such disquietudes on the said citizens, you permit them to be quit of yielding such toll, passage, lastage, and other customs as aforesaid, to you of thtir goods and things in tbe same borough and the port thereof. Witness our-self at Westminster, the 19th day of July, in the 27th year of our reign." Tbe alias was the same as the original writ, except that after the words, " We willing, &e. command you," were added, "as formerly we commanded you," &c. "oc lignify to us the cause, wherefore you would not, or could not, execute our command,; formerly directed to you therein. Witness ourself at Westminster, the 23dl day of July, in the 27th year of our reign." The pjuries was also the same as tbe original, except that after the words "command you,"...
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