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LORD CHIEF JUSTICE held such evidence inadmissible, and directed a nonsuit.

Bramwell now moved for a new trial:

The order of justices was not conclusive. The cases in which convictions have been held so are not applicable. Here the statute does not call upon the justices to convict, but authorizes them to make an order, under which the surveyor may remove the alleged nuisance. It does not even require that notice of the application for an order shall be given to the person whose property is to be affected. Such an order cannot be valid if the facts do not bear it out. In Branwell v. Penneck (1) a man who had been left in possession of goods seized under a fi. fa. laid an information against the attorney who had employed him, for non-payment of his wages: the justice issued a summons, heard the complaint and answer, and made an order upon the attorney to pay; which not being done, he issued a distress warrant against the attorney's goods, under stat. 20 Geo. II. c. 19. This Court held that the man in possession was not a servant within the statute, and that trespass lay against the magistrate; and they stated distinctly as a ground, not that the warrant failed to show jurisdiction, but that the magistrate had not jurisdiction in fact, because the informer was not a labourer within. the statute.

(LORD DENMAN, Ch. J.: I thought here that Brittain v. Kinnaird (2) was applicable, and that the justices had jurisdiction to try whether the place in question was a public highway or not.)

Branwell v. Penneck (1) is a later decision.

(COLERIDGE, J.: Brittain v. Kinnaird (2) has been oftener recognized than almost any modern case.)

In Basten v. Carew (3), which was cited at the trial, the justices had drawn up a record of proceedings had before them under stat. 11 Geo. II. c. 19, s. 16; and it was held that the entry so made by them as judges of record was conclusive. The order here is not entitled to the same weight, but may rather be compared to

(1) 7 B. & C. 536.

(2) 21 R. R. 680 (1 Brod. & B. 432).

R.R.-VOL. LXIV.

(3) 27 R. R. 453 (3 B. & C. 649).

36

MOULD v. WILLIAMS.

[ *473]

MOULD

WILLIAMS.

[474]

[ *475 ]

the order in Welch v. Nash (1) which was held not conclusive, the Court saying that the magistrates could not make facts to give themselves jurisdiction. The distinction between a mere order and a conviction is pointed out in the observations made upon Welch v. Nash (1) by BURROUGH, J. in Brittain v. Kinnaird (2), and BAYLEY, J. *in Gray v. Cookson (3).

(COLERIDGE, J.: The justices here had jurisdiction to enquire whether the ground was a highway or not; and, if they had, the conclusion they came to in the exercise of that jurisdiction cannot be questioned.)

In Weaver v. Price (4) justices issued a distress warrant for a
poor rate, reciting that W., an occupier of land in the parish of
Overton, was rated &c., and, on demand, had refused to pay; and
the justices were held liable in an action of trespass because it
appeared on the trial that W. did not occupy any land in Overton.
In Fernley v. Worthington (5), where the mayor of a borough had
issued a warrant of distress to levy a borough rate imposed upon a
township in respect of a portion of it which was within the borough,
the rest being without, the Court of Common Pleas held the assess-
ment improper, and that trespass lay against the justice who
issued the warrant; yet, before doing so, he must have exercised
a judgment upon the facts which were said to render the warrant
illegal. Where an order of justices, requiring the stewards of a
benefit society to readmit a member, recited that it appeared to the
justices that the rules had been allowed and confirmed at Sessions,
this Court held that, on indictment for disobeying the order, such
recital was not evidence of the proceedings at Sessions: Rex v.
Gilkes (6). If the magistrates in a case like the present were to
plead specially, and they alleged a conviction, that would be a
judgment, and the conviction, if produced on the trial, conclusive ;
but, if they merely stated that certain land was part of a highway,
and that the timber was placed upon it, and thereupon they issued
their order, Wearer v. Price (4) and Fernley v. Worthington (5)
*show that the defendants would fail, unless they proved the
ground of such order.

(1) 9 R. R. 478 (8 East, 394).

(2) 21 R. R. 688 (1 Brod. & B. 441).
(3) 16 East, 13, 23.

Cur, adv. vult.

(4) 37 R. R. 454 (3 B. & Ad. 409).
(5) 1 Man. & G. 491.

(6) 8 B. & C. 439.

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LORD DENMAN, Ch. J., in the same Term (January 31st), delivered the judgment of the COURT. After stating the principal facts, as at p. 559, ante, his Lordship proceeded as follows:

It appeared to us on the trial that there was no difference between this case and Brittain v. Kinnaird (1), except that there the magistrates convicted; here they issued a warrant to remove an obstruction. It does not appear to us that this can make any difference in principle. In both cases they are bound to exercise the power confided by the Act: the party interested receives notice to attend and disprove all that can entitle them to adopt any measures against him; and their warrant is an adjudication of every material point. We were, however, rather disposed to doubt whether, as the seventy-third section gives this authority only where the obstruction is laid on the highway, the jurisdiction might not be disproved by showing to the jury's satisfaction that the locus in quo was not part of the highway. The same might have been said in Brittain v. Kinnaird (1). The power of convicting was given by stat. 2 Geo. III. c. 28, s. 5, where the owner of a boat used it in the manner prohibited; and the Court held that magistrates committing the plaintiff for having used his boat in such a manner were not to be made answerable in trespass by proof submitted to a jury that the plaintiff's boat was not such a one as the Act described; but that the finding by the magistrates on their conviction was conclusive against him on that point.

We think we ought to throw no doubt on the authority of that case. We were pressed with the case of actions against magistrates who issue warrants of distress for enforcing payment of poor rates, in which they have been held liable to an action for damages if the rate itself be invalid. This case is clearly distinguishable. A rate, indeed, good on its face, and free from any such defect as makes it wholly void, is a necessary part of the foundation of the jurisdiction; but with the formation of that rate the magistrates have nothing to do; nor does its validity ever come in judgment before them; that is a mere fact as to which they institute no enquiry and come to no judicial conclusion: their warrant of distress, therefore, cannot be any evidence, still less conclusive evidence, of any fact on which the validity of the rate may depend: nor in its terms does it affect to be. For example, occupation within the parish for which the rate is made is necessary to its validity as against the individual;

(1) 21 R. R. 680 (1 Brod. & B. 423),

MOULD

v.

WILLIAMS.

[ 476]

MOULD

v.

WILLIAMS.

but the inquiring into that would be extrajudicial by the magistrates; and therefore, when the party brings that matter before them in answer to the application for the warrant, this Court has usually declined to compel them by mandamus to issue their warrant, which it never would have done if the magistrates had the right; for then it would have been their duty to examine into, judicially, and decide on, that fact. The principle therefore on which convictions are conclusive evidence of the facts stated in them, necessary to their validity, does not apply.

In this case there can be no rule.

1844. Jan. 26.

[526]

Rule refused.

HALL . THE MAYOR, ALDERMEN AND

BURGESSES OF SWANSEA.

(5 Q. B. 526–550; S. C. D. & M. 475; 13 L. J. Q. B. 107; 8 Jur. 213.)

The proprietor of tolls wrongfully taken and withheld by a corporation aggregate may sue the corporation in assumpsit for money had and received.

The layer keeper of Swansea was an officer employed to keep the layers or beds for shipping in the port free from obstacles and in a proper state. He was appointed, by custom, at a leet and baron court held yearly in May and October, by the steward of the seignory of Gower, the lord of which (the Duke of Beaufort) was lord of the borough and manor of Swansea. These were coextensive. The jury of the court (composed of aldermen, burgesses and residents) presented two persons to the steward, one of whom he elected to be layer keeper. The portreeve (the head officer of the borough before stat. 5 & 6 Will. IV. c. 76) sat with the steward, but took no part in the proceedings. The layer keeper was sworn to execute the office for the year ensuing, and until another should be chosen in his stead, or he should be lawfully discharged. By Act of Parliament, 31 Geo. III. c. 83, to the introduction of which the Duke and the corporation were parties, trustees were appointed for managing and improving the harbour, but the office and rights of the layer keeper were expressly reserved. Under the authority of this Act a harbour master was appointed, who performed all the actual duties formerly discharged by the layer keeper. Tolls, other than those received by the layer keeper, were paid by the shipping which used the port to the portreeve (who paid the corporation a rent for moorage, &c.), and to the water bailiff, an officer of the Duke.

Plaintiff had, for some years before the passing of stat. 5 & 6 Will. IV. c. 76, been annually appointed layer keeper. In May, 1836, he was reappointed, under protest from the mayor of the then corporation. In October, 1838, the corporation prevented the holding of the court leet and court baron; and, in consequence, no court was held till May, 1842, when they were resumed. No appointment of layer keeper took place from May, 1836, till May, 1842, when plaintiff was reappointed. In October, 1836, the town council resolved that the appointment of layer keeper should be vested in the corporation, and the revenue added to the corporation fund. The corporation accordingly received the layer keeper's dues from January,

1837, to June, 1842. Plaintiff sued them for the amount in assumpsit for money had and received.

Held,

1. That plaintiff had not ceased to be layer keeper by the omission to appoint from 1836 to 1842.

2. That the office had not been, and could not be, discontinued by the corporation under stat. 5 & 6 Will. IV. c. 76, s. 58.

3. That the cessation or suspension of the layer keeper's services had not affected the right to receive the tolls.

4. That the action, in point of form, was well brought (1).

ASSUMPSIT for money had and received. Counts for work done and on an account stated.

Particulars of demand.

"This action is brought to recover the sum of 1,000l. due from the defendants to the plaintiff for moneys received by the defendants in respect of certain tolls, dues and keelage, payable to the plaintiff as the layer keeper of the river Tawe, at Swansea, from the 1st day of January, 1837, to the commencement of this action."

Plea: Non assumpsit. Issue thereon.

On the trial, before Maule, J., at the Glamorganshire Spring Assizes, 1843, a verdict was found for the plaintiff, damages 1,000l., subject to the opinion of this Court upon the following case.

The plaintiff asserts that he has been for twenty years, and now is, the layer keeper of the port of Swansea, duly presented by the court leet of the manor and borough of Swansea, and appointed by the steward of the Duke of Beaufort, the lord of the manor and borough; and contends that, in virtue of such appointment, he is entitled to certain tolls on shipping entering the port of Swansea. Since the year 1836, the whole amount received for these dues has been paid by the receiver to the treasurer of the corporation of Swansea instead of the plaintiff: and for the recovery of the amount so paid this action is brought.

The ancient duties of the layer keeper were to keep the layers or beds for the shipping free from obstacles and in a proper state; but these duties have been merely nominal since the appointment of a harbour master under stat. 31 Geo. III. c. 83.

The mode of appointing the layer keeper was as follows. It has been the custom from time immemorial for the stewards of the lords of the seignory of Gower, a district in the county of Glamorgan,

(1) See Clarke v. Cuckfield Union (1852) 21 L. J. Q. B. 349; Lawford v. Billericay Rural District Council [1903]

1 K. B. 772, 72 L. J. K. B. 554.

Stat. 5 & 6 Will. IV. c. 76 was re-
pealed by the Municipal Corporations
Act, 1882 (45 & 46 Vict. c. 50).-J. G. P.

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