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of LONDON

The Mavor, &c. of LYNN Regis

In consequence of this, the present Plaintiffs brought a writ 1796. of error returnable in parliament, and afligned general errors: to which the Defendants having rejoined, the Plaintiffs hoped The Mayor, &c. the judgment of the King's Bench would be reversed for the following among other REASONS: I. Because the objection made below, by the Defendants in commonly called

King's LYNN error, that the writ De effend. 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 Regifter (258. b. and the following pages), which run thus : Si A. fecerit, &c. tunc pone, &c. B. & C. &c.” being manifestly process to bring in the Defendants to answer to an action.

II. Because another objection, infifted on by the Defendants in error, that the action, fuppofing 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 is laid down, that “ all the corporation may bring “ the writ by the name of their corporation, and may have an alias and attachment thereupon, if need be;" by which must be understood the process of attachment in the Register, neither that book nor Fitzherbert any where alluding to a criminal attachment on this writ.

III. Because the objection principally relied on by the Defendants in error was, that this action is not maintainable where no distress has been taken ; which objection the Plaintiffs in error submit cannot be fupported for the reasons, and upon the authorities following:

It is evident that De elend. quiet. de theol. and Monstraverunt are no more than different names for the same writ, arising from a very flight variation in the form. The Register contains no fuch title as Monstraverunt : but several writs of Monstraverunt are inserted in the title De essend. quiet. de theol. Burgesses may have Monstraverunt (Register, 259.6.), and tenants in ancient demesne may have the writ De theol.; and all the tenants may fue 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 Inft. 100. a.) says expressly, that a man may have Monstraverunt before diftress; by which he must be understood to mean the action of Monstraverunt, having classed it with other writs, on all of which

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of LONDON

1796. the remedy is by action. The Register contains several prete

dents of writs De ellend. quiet. de theol, and attachments on them, The Mayor, &c. which do not state a distress; and other precedents of the fame

writ which do. Fitzherbert, (N. B. 226. I.) in the outset of the The Mayor, &c. title, describes this writ to lie where the King's officer will commonly called demand toll. After giving the form of the writ, he goes on to King's Ly**. ftate 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 first; 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 individuals 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 diftrain for it, but bring actions of assumpft, to which only the general iffue 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 thall either eftablish 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 (258.6.) it appears that “ quietos efle permittere non curaveruntis a sufficient allegation in the attachment. The averment in this declaration is, that the defendants did disquiet and did require toll; and it is impoflible to contend that the declaration is bad in this respect, without contending that the attachment also, which ftands upon the authority of the Regifter, is equally bad.

VI. Admitting that the declaration ought in ftrictness 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 ele permittere non curaverunt” in the attachment must be understood to mean disquieting by distress; and if the defendants had taken iffue upon this same allegation in

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the declaration, the Plaintiffs could not, fuppofing a distress 1796. necessary for the support of the action, have entitled themselves to a verdi&t without proving a diftress. An actual distress The Mayor, &c.

of LONDON cannot be more necessary to support this action than an actual impleading to fupport a warrantia chartæ ; and yet it is laid The Mayor, &c. down in Fitz. N. B. (134.K.) that in warrantia chartæ, if De- commonly called

King's Lynx. fendant say that Plaintiff was not impleaded, he thereby confefseth the warranty, and Plaintiff shall have judgment to recover it. By the same rule, if the present Plaintiffs had alledged a distress in their declaration, and the Defendants had denied it, they would have 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 ftating a distress in the declaration prevents the Plaintiffs from recovering the acquittal, when, if the diftress had been ftated 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 iffues; and the exemption being found as laid, the meaning of the term “ citizens” cannot come in question here.

J. ADAIR.
V. GIBBS.

The Defendants in error hoped that the judgment of the Court of King's Bench, reverfing the judgment of the Court of Common Pleas, would be affirmed, for the following, among other REASONS :

I. It is submitted, that the antiquated writ De efendo quietum de theolonio, to which the corporation of London has thought fit to resort, is not remedial, so as to bear the process and pleadings of a folemn action; but is fimply a command from the crown, which being disobeyed ought not to be followed with any thing beyond an attachment for the contempt. Sir Henry Finch, in his profound discourse on law, (b. iv. c. 48.) is a very pointed authority to this effect. The last chapter in that work treats of certain fpecial writs wherein no process lieth. It begins in these words:-“ Thus far of an action, and the “ several parts of it, and of writs both original and judicial " that begin or prosecute the action. Besides which there “ are certain other originals, which are, as it were, special

66 anomalies

1796. “ anomalies and exceptions from the former, being not de

ductory to bring any matter into plea or folemn action, but The Mayor,&c. “ only commandatory or prohibitory to do or leave fomething

66 undone. And therefore no process at all lieth in these Writs, The Mayor, &c. of LYNN REGIS

but only an attachment upon a contempt for not executing or commonly called “ obeying them.”- After this introduction, Sir Henry Finch King's Lynn.

enumerates various writs of this special nature; and the laft but two of these instances is the writ De elendo quietum de theolonio.

II. Should the writ De essendo quietum de theolonio be deemed so remedial as to bear an action, it is submitted to be a point deserving of consideration, whether on the face of the record there is not an error in the process against the corporation of King's Lynn ; for the record states them to have been only fummoned, whereas there are precedents according to which an attachment ought to have been part of the process.

III. It is apprehended to be an invincible objection against the corporation of London, that the sort of gravamen or injury ftated by them in their declaration is not actionable. They do not allege any taking of a distress for toll by the corporation of King's Lynn. The injury alleged is fimply a claim or requiring of toll from the citizens of London. In other words, the action is brought, not for an actual damage, not for an actual injury, but merely for damage and injury feared. It is then an action quia timet. But the corporation of King's Lynn are advised, that there are only certain special cases, in which an action quia timet is allowed by our law; and that this writ De effendo quietum de theolonio is not of the number. Lord Coke in his Commentary upon Littleton, (fol. 100. a.) thus enumerates the instances of actions quia timet. “ Note, that there be fix writs “ in law, that may be maintained, quia timet, before any mo“ lestation, distress, or impleading; as, 1. A man may have his “ writ of mesne, (whereof Littleton here speaks) before he be “ impleaded. 2. A Warrantia cartæ before he impleaded.

3. A Monstraverunt before any distress or vexation. 4. An “ Audita querela before any execution fued. 5. A Curia clardenda before any default of inclofure. 6. A Ne injufte vezes " before any distress or moleftation. And thefe be called “ Brevia anticipantia, writs of prevention.” Hence it is plain, that the writ De ellendo quietum de theolonio did not occur to Lord Coke's extensive learning as one of the few anticipating

writs, on which an action is sustainable before actual damage 1796. received. It is observable also, that all of the few precedents hitherto explored and appealed to for the corporation of London The Mayor, &c. seem to fail of serving their purpose in this respect. The first of these is the case of the 18th of Edward the First against the bai- The Mayor, &c. liffs of Southampton in Mr. Ryley's. Placita Parliamentaria, p.13.; commonly called and in that case the Abbot of Saint Edward's Place, who was

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King's LYNN. complainant, expressly states, a distress upon his tenants by the bailiffs, and lays damages on that account. In the next precedent, which is the case of the King and divers citizens of Lincoln against the bailiffs of Burton, in the 22d of the same reign, as given in Mr. Madox's Firma Burgi, p. 138. the injury stated is, the having been aggrieved and disquieted by great distresses, to the damage of the citizens of Lincoln, who were joined with the King as complainants. The third and remaining precedent is a case in the King's Bench, of the ad of Edward the Second, in which certain tenants of the King's manor of Brimmesgrene and Norton were Plaintiffs; and on a search for this case, made in confequence of its being cited from Lord Coke's second Institute, (654. also in Dugd. Warwickshire, ift ed. p. 657.) the record has been found, by which it appears, that the Plaintiffs alledged the making of diftresses for toll and a damage thereby of 2ol. With these precedents, originally cited for the corporation of London, but on this point at leait operating against themselves, it may be proper to connect the chapter De Libertatibus in the second book of Bracion, (cap. 24. $ 4. & 5. fol. 57. a.) In that part of Bracton, notice is taken of the remedy for those disquieted for toll in breach of their privilege of exemption granted to them by the crown. But in the only action there stated for such an injury, both the writ and the count suppose an actual damage received by the Plaintiffs; for the writ calls upon the Defendants to answer Quare ceperunt theolonium, and the count specifies a dif tress for the toll to the damage of the Plaintiffs in a certain fum.

IV. It is also conceived to be an objection to the declaration of the corporation of London in the prefent cafe, that for the injury they have alleged they are not the proper Plaintiffs. The exemption from toll under the royal grants to London is conferred in favour of the individual citizens of that place, and these are competent to defend their right of exemption without aid of the corporation. The corporation of London is not even within the benefit of the exemption : for it seems to have been admitted in

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