1832.

The Mayor of TRURO

V

REYNALDS.

The reasonable construction, therefore, is, that it means an exemption from duties elsewhere, which the sovereign might, without inconsistency, remit. It would be most unreasonable to suppose an exemption from the duties granted by a clause in the same charter containing no exception. Stress has been laid on the clause respecting duties in fairs and markets. I shall not repeat the observations of the Chief Justice; but if the right in question, as the jury have found, was vested in the corporation before the charter, the affirmative language of the charter will not deprive them of the antecedent right.

ALDERSON J. I concur in the decision which has been pronounced. I thought the case clear at the trial, and I have seen no reason to alter my opinion.

It was a question for the jury to say, whether the corporation had any prescriptive right to these dues. The evidence began with modern usage, and in the first cause it was proved that there had been no variations as far as human memory went. Then followed much documentary evidence, to shew that the quayage had been let and taken from 1637 to the present time.

I left it to the jury to consider whether it was not reasonable to infer that the duty had been taken as far back as 1637; and whether from that circumstance they would not infer a legal origin of the custom. If such evidence be not sufficient to warrant such an inference, I do not know what title would stand the test of legal enquiry.

And the charter of Elizabeth does not in any way break in upon this title.

I shall not add to what has fallen from the Chief Justice on that subject. But as to the argument drawn from the grant of duties during fairs and markets, such a grant in its nature only enables the corporation to levy from the strangers who frequent the fairs and

markets

markets during their temporary sojourn, whereas my brother Merewether who relied on the argument, contends that strangers are to be liable at all times. I think, therefore, the jury have found a right verdict.

The second case turned on the question whether there had been any variation in the usage in modern times. The evidence of that was, an unsatisfactory witness whose credit was left to the jury; a tariff fifty years old, containing only four variations in 150 charges, (not one of which variations applied to the charge now in issue,) and papers which at various times had been given by the collectors to inhabitants of the town, in some of which the variation was a mere mistake on the face of

the paper.

If no corporation could maintain its tolls without producing a series of bills exempt from mistake, it is probable that no tolls would long exist.

But in 1815 it appeared there had been an attempt to establish a new tariff, accompanied with some improper conduct by a collector, without the privity of the corporation. That new tariff was presented to the people of Truro, they had a meeting; refused to pay; and in a conference with the corporation, produced the old tariff, when they settled from that the rates which have been demanded ever since. That was of itself strong evidence in favour of the ancient toll, and put an end to the objection on the ground of variance. The whole, however, was left to the jury, and I told them if they were of opinion the corporation had established a right to the ancient amount of toll, a slight variation in modern times would not destroy it. I was satisfied with the verdict, and think this rule should be

Discharged.

1832.

The Mayor

of TRURO

V.

REYNALDS.

REGULE GENERALES.

Hilary Term, 2 W. 4.

I.

WHEREAS it is expedient that the practice of the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, should, as far as possible, be rendered uniform: IT IS ORDERED, That the practice to be observed in the said Courts, with respect to the matters hereinafter mentioned, shall be as follows; that is to say,

AUTHORITY TO PROSECUTE OR DEFEND.

Tidd's Practice. (a) 8th Edit. 9th Edit.

page

1. Warrants of attorney to prosecute or defend, page shall not be entered on distinct rolls, but on the top of the issue roll.

2. A special admission of prochein amy or guardian, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified.

AFFIDAVIT.

91

95

95, 6

100

3. No affidavit of the service of process shall be deemed sufficient if made before the plaintiff's own attorney, or his clerk.

4. An affidavit sworn before a Judge of any of the Courts of King's Bench, Common Pleas, or Exchequer, shall be received in the Court to which such Judge belongs, though not entitled of that Court; but not in any other Court, unless entitled of the Court in which it is to be used.

(a) The references to Tidd's Practice have been added for the convenience of the profes

sion, but form no part of the
rules promulged by the Judges.

5. The

Tidd's Practice. 8th Edit. 9th Edit.

page

499

493

5. The addition of every person making an affidavit page shall be inserted therein.

6. Where an agent in town, or an attorney in the country is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received; and an affidavit sworn before an attorney's clerk shall not be received in cases where it would not be receivable if sworn before the attorney himself; but this rule shall not extend to affidavits to hold to bail.

500

494

ARREST.

7. After non pros, nonsuit or discontinuance, the defendant shall not be arrested a second time without the order of a Judge.

8. Affidavits to hold to bail for money paid to the use of the defendant, or for work and labour done, shall not be deemed sufficient unless they state the money to have been paid, or the work and labour to have been done, at the request of the defendant.

9. No supplemental affidavit shall be allowed to supply any deficiency in the affidavit to hold to bail.

10. A variance between the ac etiam and the declaration, or the want of an ac etiam, where the defendant is arrested, shall not be deemed ground for discharging the defendant, or the bail; but the bail bond or recognizance of bail shall be taken with a penalty or sum of forty pounds only.

WRIT, WHEN AND HOW TO BE FILED.

11. When the rule to return a writ expires in vacation, the sheriff shall file the writ at the expiration

U 3

Tidd's Practice. 8th Edit. 9th Edit.

page

308

307

piration of the rule, or as soon after as the office page shall be open.

12. And the officer with whom it is filed shall endorse the day and hour when it was filed.

BAIL.

13. If any person put in as bail to the action, except for the purpose of rendering only, be a practising attorney, or clerk to a practising attorney, the plaintiff may treat the bail as a nullity, and sue upon the bail bond as soon as the time for putting in bail has expired, unless good bail be duly put in in the mean time.

14. In the case of country bail, the bail piece shall be transmitted and filed within eight days, unless the defendant reside more than forty miles from London, and in that case, within fifteen days after the taking thereof.

15. When bail to the sheriff become bail to the action, the plaintiff may except to them though he has taken an assignment of the bail bond.

16. It shall be sufficient, in all cases, if notice of justification of bail be given two days before the time of justification.

17. If bail, either to the action or in error are excepted to in vacation, and the notice of exception require them to justify before a Judge, the bail shall justify within, four days from the time of such notice, otherwise on the first day of the ensuing term.

18. Notice of more bail than two shall be deemed irregular, unless by order of the Court or a Judge.

19. Affidavits of justification shall be deemed insufficient,