1865. WERE V. Clerk of the grant of cognizance of pleas to the borough would not exclude the county justices.] The charter of James 1 recites that the mayor and burgesses "from time whereof the memory of man is not to the contrary, had used and enjoyed divers liberties, customs and immunities, by reason of divers prescriptions and customs of old used in the said borough:" it confirms them, and then gives the mayor and recorder the jurisdiction of any justice of the peace, "so nevertheless that they do not hereafter, in any manner, proceed to the determination of any treason, murder or felony, or of any other matter touching the loss of life or limb." The term "felony," in the time of James 1, meant a capital offence; Termes de la Ley, 4 Bl. Com. 94-8. This charter is evidence of a lost commission of the peace or of a lost charter. [Blackburn J. It has been decided that cognizance of pleas cannot be acquired by prescription: is not the same true of an exclusive jurisdiction of borough justices?] The charter, while confirming all the other ancient rights of the borough, restrains the power to try capital offences; this in effect is equivalent to a non-intromittant clause. [Blackburn J. Your argument is that the Crown has taken away from the borough justices the power to try capital offences and has not restored it to the county justices, and therefore they can only be tried at the assizes. Crompton J. There was nothing in the charter to exclude the county justices from trying grand larceny committed within the borough. His Lordship referred to Dickinson Quarter Sessions, by Talfourd, p. 146. Cockburn C. J. The borough justices would commit prisoners for trial at the borough Quarter Sessions; therefore the county justices had no opportunity of exercising concurrent jurisdiction. Crompton J. There is no case in which a non-intromittant clause has been presumed from the fact of the 1865. WERE V. county justices not having exercised the power of trying Clerk of the offences committed within a borough. Cockburn C. J. A non-intromittant clause was well-known in the time of James 1, and it is strange that it should not have been inserted in the charter if the borough of Bradninch had this exclusive jurisdiction.] The liability to the police rate is included in the liability to the county rate. COCKBURN C. J. We cannot from non-interference by the county justices within the borough draw an inference never drawn before, that the borough justices had exclusive jurisdiction, and so supply what is wanting in the charter of James 1. The silence of that charter as to any exclusive jurisdiction in the borough justices leads to the opposite conclusion, viz., that the exclusive jurisdiction did not exist which is necessary to exempt a borough from the county and police rates. CROMPTON and BLACKBURN JJ. concurred. Julgment for the respondent. Peace of Ex parte KEDDle. [Reported 4 B. & S. 993.] Saturday, 1865. Wednesday, Prerogative of Wharfage The Mayor, Aldermen and Burgesses of WEY- Stat. 6 G. 4. c. cxvi. s. 1. recites, that by stat. 22 G. 2. c. 22. customs on all goods, wares, merchandises and commodities imported into the harbour of W. were payable to the corporation of W.; that by stat. 1 G. 4. c. xl. they were empowered to erect a new bridge and to maintain the harbour of W. and its quays; and that they had borrowed money on the credit of the tolls or duties granted by stat. 22 G. 2. c. 22., which still remained due and could not be repaid, nor could the new bridge,harbour and quays be maintained unless the tolls &c. were increased. Sect. 2 enacts, that petty customs and wharfage duties for all goods, and harbour dues, and ballast duties, shall be taken upon every ship, which are vested in the corporation. By sect. 29 coals imported "for the use of His Majesty's steam packets and actually used on board the same," are exempted from duty. By sect. 23, "any horses or carriages attending His Majesty or any of the Royal family" are exempted from tolls for passing over the bridge. Held, that stone brought by a barge into the harbour of W. for the use of Her Majesty's government works, and delivered there to persons in the employ of the government for that use, was exempt from wharfage duty. ASE stated under stat. 20 & 21 Vict. c. 43. CASE At a Petty Sessions of the peace for the borough of Weymouth and Melcombe Regis an information was heard, by which the appellants complained that the respondent had refused to pay the sum of 2s. 6d. wharfage duties on 10 tons 0 ft. 1 in. of block stone brought into the harbour of the borough. The information was laid under stat. 6 G. 4. c. cxvi., "An Act to amend and enlarge the powers and provisions of several Acts relating to the harbour and bridge of the borough and town of Weymouth and Melcombe Regis in the county of Dorset." The stone described in the information was, on the 22nd October, 1863, brought by a barge into the harbour of Weymouth for the use only of Her Majesty's Government Works on the Nothe. It was brought there from Portland for such use, and delivered there by the 1865. respondent's orders to persons in the employ of the government for the use of the works. The respondent, Mayor &c. of as one of Her Majesty's officers, took charge of it on behalf of the government. The sum of 2s. 6d. would be the amount of the wharfage dues payable in respect of the stone so brought into the harbour if any were payable. The collector, on the 29th October, 1863, demanded of the respondent payment thereof, and he refused to pay it. Such demand was made of him as commanding officer of the Royal Engineers taking charge of the stone. The receipt given on delivery of the stone was as follows: "War Department Works. "No. 2 Barge. Weymouth. "22nd October, 1863. "Received from the War Department Quarries stone as under mentioned." [The particulars were set out.] Signed. "W. Ruse, Corpl., R. E." It was contended on behalf of the respondent that he was not liable for the wharfage dues claimed, inasmuch as the Act of Parliament did not give the appellants any right to petty customs or wharfage dues in respect of stone brought into the harbour of the borough for the use of Her Majesty's Government Works, and that by Her Majesty's prerogative the stone was exempt from such dues in such a case, and the justices being of that opinion dismissed the information and complaint. The question for the opinion of the Court was, whether the justices were right. Lush (Joseph Brown with him), for the appellants.The question is, whether stone brought from Portland and imported into the harbour of Weymouth for the use WEYMOUTH v. NUGENT. of Her Majesty's Government Works is exempt from the wharfage duty imposed by stat. 6 G. 4. c. cxvi. Sect. 1 of that statute recites stat. 22 G. 2. c. 22. (a), (which it repealed), "An Act for the better ascertaining, recovering and collecting certain duties commonly called petty customs or wharfage, payable upon the importation and exportation of goods and merchandises into, or out of the harbour of the borough and town of Waymouth and Melcombe Regis in the county of Dorset; and also of ballast and harbour duties, payable in respect of ships and vessels coming into, and going out of the said harbour, and for the better repairing and keeping in repair the said harbour" &c.; whereby it was enacted that certain rates and customs on all goods, wares, merchandises and commodities imported into and exported from the harbour should be paid to the corporation, and should be applied and expended in cleansing and keeping in good and proper order the harbour, and in repairing and keeping in good repair the bridge, wharfs, quays &c.: also stat. 1 G. 4. c. xl., "An Act for repairing or taking down and rebuilding the bridge within the borough and town of Weymouth and Melcombe Regis, in the county of Dorset ;" whereby the corporation were authorised to repair or pull down the bridge and erect and maintain a new bridge, and to maintain the harbour and quays belonging thereto, &c. ; (a) It was stated that this statute was out of print; but there is an abstract of its enactments in the Statutes at Large, 4to, 1769. The preamble recites that the Corporation of Waymouth and Melcombe Regis had "for time out of mind received and been intitled to receive certain duties called petty customs or wharfage, upon the importation and exportation of all goods and merchandizes into and out of the harbour of Waymouth and Melcombe Regis aforesaid, from the owner, importer or exporter of such goods and merchandizes, and also certain other duties there called harbour dues and ballast duty, from the masters or commanders of ships and vessels ;"&c. |