1842. JEWISON บ. DYSON Exch. of Pleas, case? The mere omission to use the power in the one case is not an argument upon the construction of the words. But let us look at the case, and see what it is. Mr. Wortley stated that there had been seventeen Dukes of Cornwall, but he omitted to state how long they continued in each case. It is well known, and any one who consults The Prince's Case in Coke's Reports (a) (one of the most learned and elaborate which is to be found in those Reports) will see, that the question there was as to the tenure and constitution of the Duchy of Cornwall; and after a long debate of all the judges, in a judgment full of learning and research, they came to the conclusion that the Duchy of Cornwall could not be created by the king's prerogative at common law, because it was constituting an honor, and a tenure inconsistent with the common law, and that it could only be legally done by statute. And in the same manner the creation of the County Palatine of Lancaster was by statute, passed at the requisition of the king and his lords in Parliament. The Duchy of Cornwall is, indeed, a very peculiar tenure. It only exists when there is the eldest son of a king born after he becomes reigning king. He alone can enjoy it, and the moment he becomes king it ceases, and is absorbed in the Crown. What, then, is the consequence of that? The necessary consequence is, that in the Duchy of Cornwall, whenever the duchy ceases to exist, being absorbed in the Crown, the appointments of coroners are made in the same way as the appointments in any other county, by the freeholders; and if afterwards a different authority should intervene by the birth of a Prince of Wales, he cannot interfere with such existing appointments; he has no power to divest an existing of ficer, but only to appoint to those offices when they become vacant. Therefore it would be extremely difficult to found any argument at all upon that state of things, be (a) 8 Rep. 1, a. 1842. cause the fact may have been that there was no instance Exch. of Pleas, during the existence of a Duke of Cornwall in which a coronership was vacant. Before the argument could have any weight, that fact ought to be ascertained. With respect to the Duchy of Lancaster, I have had some opportunity of knowing that, in ancient times, a great portion of the records of the duchy were not very well kept. There is one class of documents that are very well preserved, namely, bills in equity filed in the Duchy Court; and it is very remarkable that, I believe, some of them are of more antiquity than any now existing amongst the records of the Court of Chancery: but with respect to other proceedings, such as the appointments of officers, and so on, I believe that, till a very recent period, the records of the proceedings of the Duchy of Lancaster generally were not kept in a place of deposit, so as to be traceable to any great antiquity. It was so likewise in the Duchy of Cornwall. In the case of the Duchy of Cornwall, it is almost incredible how the documents belonging to that Court were scattered about: a great many are in the Court of Exchequer-a great many in the Tower of London; and certainly till a very recent period, the accession of King George the Fourth, the records of the Duchy of Cornwall were never kept in a proper place and condition. I am therefore not at all surprised at the deficiency of early evidence, as to the appointment of a coroner, and as to his duties: it is a matter that one would naturally infer from the state of things that existed anterior to the time of Queen Elizabeth. I think, therefore, there is nothing in the state of facts, which have been carefully looked at upon the learned Judge's notes, that can be properly used to contravene the arguments which have been adduced to establish the construction that has been put upon this charter. It is not inconsistent with ancient usage. The jury had a right to presume that that usage had existed at a time VOL. IX. R R M. W. JEWISON v. .DYSON. Exch. of Pleas, anterior to that at which it was proved to exist, and the 1842. JEWISON v. DYSON. mere non-existence of any record of the coroner performing the duty I consider as of the less importance, on account of the circumstance I have stated, that the records of that period were very imperfectly kept. Under these circumstances, conceiving that these words are sufficient to delegate to the Duke of Lancaster the right to appoint a coroner, and conceiving that such a right might exist in the Crown at the time that the charter was granted,we think that a proper construction has been put upon it by the jury, that we ought not to disturb the verdict, and that therefore the rule must be discharged. PARKE, B.-I had not an opportunity of hearing a great part of the argument in this case. All that I can say is, that so far as I did hear it, I see no reason to dissent from the view taken by the Lord Chief Baron, that this verdict ought not to be disturbed. ALDERSON, B.-I am of the same opinion. It appears to me that the charter is capable of the construction which the Lord Chief Baron has put upon it, and that that construction, coupled with the evidence, fully authorized the jury to come to the conclusion at which they arrived. It is not necessary to say whether by the charter a power is given to the Duke of Lancaster to create a coroner eo nomine: it is only necessary to say that it is in the power of the Duke of Lancaster, under that charter, to appoint an officer to perform the duties which are granted to him, of "attachiamenta de placitis coronæ ;" and the duty that in this case was attempted to be performed by the defendant, the coroner for the West Riding, interfered with and was contrary to the performance of that duty under the charter. That is quite sufficient for the judgment in this case. If there are any duties of the coroner which are properly of a judicial nature, it may be that those fall within the rule laid down by Mr. Wortley, upon Exch. of Pleas, the authorities which he cited to us yesterday. But this is not a case within that rule. GURNEY, B.-I have heard the argument on one side only, and only a portion of that; and not having heard the case on the other side, I cannot presume to give any opinion. Rule discharged. 1842. JEWISON v. DYSON. VACATION SITTINGS AFTER HILARY ᎢᎬᎡᎷ. HARRIS V. BIRCH, Bart. TROVER for wine.-Pleas, first, not guilty; secondly, not possessed; on which issues were joined. At the trial before Wightman, J., at the last Liverpool assizes, it appeared that the defendant, the sheriff of Lancashire, had seized the wine in question under a fieri facias against Messrs. Jones, Windle, & Co. Those persons had previously pledged the wine to the plaintiff, by virtue of the following letter : "To Rice Harris, Esq., Birmingham. "Liverpool, 12th January, 1840. "Dear Sir,-Agreeably to the arrangement between the writer and yourself, we now wait on you with our draft for £500, for which we beg your acceptance, with the understanding that we shall provide for the same at maturity; and in consideration of your accepting said draft, we hand you herewith bill of lading and policy of insurance for ment did not require a mortgage stamp, within the 55 Geo. 3, c. 184, sched., part 1, title 'Mortgage.' 1842. HARRIS ข. BIRCH. Exch. of Pleas, wines daily expected per Jason,' now discharging part of her cargo at Waterford, and particulars of other wines we have placed in your name. These together will afford you security beyond the amount of the bill. With regard to the wines to arrive, we shall land and warehouse them, to be held at your disposal. Assuring you it is our wish to place you beyond all risk, we have thus readily complied with your suggestion. "We remain, dear Sir, "Yours very truly, "Jones, Windle, & Co." With this letter were transmitted the particulars of the wines, and the bill of lading, indorsed generally by Jones, Windle, & Co. The plaintiff, after some correspondence had taken place, acceded to the request of Jones, Windle, & Co., and advanced them the money. The letters were produced in evidence, and bore an agreement stamp. It was objected for the defendant that they amounted to a mortgage of the wines, and were not admissible without a mortgage stamp, under the 55 Geo. 3, c. 184, sched. 1, part 1, tit. "Mortgage (a)." The learned Judge overruled the objection, and received the evidence, and the plaintiff obtained a verdict. (a) The following are the ma- ing, any conveyance, disposition, assignation, or tack, of any lands, estate, or property whatsoever, which shall be apparently abso lute, but intended only as a se curity." "Also any agreement, contract, or bond, accompanied with a deposit of title-deeds, for making a mortgage, wadset, or any such other security or conveyance as aforesaid, of any lands, estate, or property, comprised in such title-deeds, or for pledging or charging the same as a security." |