LONDON WHARFS. The Case of the modities (tobacco in particular) are not allowed to be landed there, and frauds are more easily committed on the revenue for want of due regulations. This occasioned the present commission, the execution of which is now opposed, 1st, By the owners of both the legal and sufferance wharfs. The legal wharfingers say, that their wharfs, being 1500 feet in length, are fully sufficient for the trade: the sufferance wharfingers swear, that theirs, being 12,000 feet, are also in general employment. The latter allegation destroys the first, and is also a proof of the necessity of more legal wharfs. The legal wharfingers say, that if the present spot, being 750 feet, be converted into wharfs, the old ones will be deserted; and yet they are not deserted now, when 12,000 feet of sufferance wharfs are employed. If this allegation be true, it only proves, that the new wharfs will be more convenient to trade than all the old ones put together. The old legal wharfs are not to be abolished, and the sufferance wharfs may still remain, if thought necessary by the commissioners of the customs. 2dly, The City of London complains, that by an extension the liberties of the city will be violated; their package and scavage eluded; their porters and carmen ruined, and Christ's Hospital, which licences the carmen, impoverished. But their package and scavage duties extend to the whole port of London; their porters and carmen will be equally employed as others, if they work at the same moderate prices; and the sufferance wharfs, which alone will be reduced by this extension, are all out of [ *586] the liberties, and non-freemen are constantly there * employed. 3dly, The inhabitants of St. Katherine's proceed merely on a mistake, that their houses, situate on the spot assigned, are to be taken from them by this commission. But it is optional, not compulsive; beneficial, instead of a grievance: their ground cannot be turned into wharfs without their consent; but, if they can agree on terms, they may have the privilege of wharfs, which before they were not capable of having. The objections therefore of hardship and inexpedience are ill founded, though neither the Commissioners nor the Court are judges of it: the Crown, the only legal judge, has already determined that question. But, 2. The legal objections to the commission are,― 1st, That no new commission can issue, but in such cases where none has issued before, or where the old wharfs are become unfit and useless. The solution is, this strikes at the root of all commissions of extension. The wharfs may be unfit, for want of room as well as from actual decay. Besides, these words are mere inducement in the preamble, and not part of the enacting clause. 2d, The Commissioners are interested or partial; some of them having petitioned for the commission. Solution. If this were a question of expedience, the objection might have some colour. But that is already decided. In commission of charitable uses, persons interested cannot be commissioners, but complainants, as such, are not excluded.. No charge or suspicion of interest in the place assigned. Eight only are under this predicament as petitioners. There are, LONDON WHARFS. besides, the great officers of State, of the Customs, the Lord The Case of the Mayor, and twelve Aldermen and collectors of the customs, of the quorum. This is a sufficient guard against all fraud or bias. 3d, Some Commissioners are described by their offices, not their names, and the Court cannot take judicial notice who those officers are. Solution. No pretence, that in fact any man has acted without being in the office named. This objection would vacate the highest commissions in the kingdom: the commission of the peace is often directed to the officer, [ *587 ] not the man. It has received the sanction of Legislature in the Act of Regency. 4th, The commission has determined the expedience of an extension, and has not left the Commissioners to judge of it. Sol. tion.-The commission of Car. 2, declares, that the keys and wharfs must of necessity be altered. This a cotemporary exposition, and a precedent. Besides, the Court have determined this point on the former application. 5th, The commission is, to appoint fit and convenient wharfs, whereas the act of Car. 2, says, that the appointment shall be, of lawful wharfs. Solution.-The word "lawful" must mean such as should hereafter be made so. Otherwise, if none could be appointed but such as were lawful before the commission issued, there never could be an extension. Besides, this is warranted by the precedent of Charles the Second's commission. 6th, The commission has determined the particular spot, and left nothing to the discretion of the Commissioners; whereas the word "assign" implies an election. This is illegal, and contrary to all precedent; particularly that of Dover harbour, 5 Geo. 2. Solution.-Dover Case might be proper to be left at large; but it does not follow from thence, that all others must follow it. It is improper to give the commission a power to go all down the river, or to the Kent or Surry shore. A limited discretion is proper. So, in 19 Car. 2, confined to the Customhouse and places thereabouts. Here they have a discretion to: take the whole or any part of the ground described. 7th, The commission hath departed from the powers of the statute Car. 2, in not directing the Commissioners to assign open places. Solution.-Deferred till the next head of objection is considered; viz. 3. Legal objections to the return. 1st, It is uncertain, be-cause it has not stated whether the ground be open or covered with buildings. 2d, It has in fact assigned a spot, which is in [ *588] part covered with buildings. Solution. Not necessary to state the fact, because immaterial in point of law. This construction would be destructive of the powers of the act. There is no place absolutely open, in the sense contended for, within two miles of the Custom-house. But whatever be the sense of the word "open" it was meant for the benefit of the revenue; and therefore the objection does not lie in the mouths of the present opponents. The statute of Car. 2, does not require the places to be open, when assigned; but only, when used. The word is purposely dropped in the first clause, and taken up in the second. Convenience of situation is the only thing to be regarded at the assignment; the other qualifications are con LONDON WHARFS. The Case of the ditions previous to the use. The commission and return do not constitute a legal wharf without the owner's subsequent consent to clear away his buildings. Besides, "open" does not always signify "uncovered," but "free of access." Open fair, open market, open court. Escheaters shall sit in convenient and open places; stat. 1 Hen. 8, c. 8, sect. 3. Sheds, &c. are necessary to preserve goods, yet would make a wharf illegal in the sense now contended for. In the commission for East Cowes, 32 Car. 2, part of a storehouse and shed assigned. The return 1 Eliz. supposes houses to be standing at the assignment, by ordering, that no stranger should be suffered to inhabit thereon after Easter, 1560. And it particularly assigns the ground on which the bridge-house then stood; this is the cotemporary exposition. 3d, The place assigned is unfit in its present state. Some part of it cannot be rendered of the intended width without encroaching on the river. And the assignment must be absolute at the time, and not on condition that the place be afterwards rendered fit. Solution.-The only question is, if the situation be fit and convenient. The encroachment has been already tried, and adjudged to be no nusance, in the Case of Irongate Wharf. All assignments of new wharfs must be conditional. The owner will not lay it out, and build a key, &c. till he is certain that it will be allow[ *589 ] ed. In the return, 19 Car. 2, Dice Key and Sommers Key are, in the same manner, conditional. 4th, A duplicate of the former certificate should have been laid before the Commissioners, according to the usual practice. Solution.-It may be convenient, but the omission would not be fatal. Besides, it appears they had it, for they refer to it. 5th, part only of the ground mentioned in the commission is returned to be fit: the rest should have been returned unfit. Solution.-The commission requires only that part to be returned, which is found fit and convenient, not that which is unfit. When a general commission issues to establish wharfs in a port, must the return be stuffed with the names and descriptions of every improper place? 6th, The commission is exceeded by making regulations. No such power given in this commission, though there was in that of Cha. 2. And even in that it was illegal, as not being warranted by the statute; but was overlooked, from the emergency of the times, being immediately after the fire of London. Solution.-In Queen Elizabeth's commission there is no such power, yet regulations are made by the return. And the omission in King Charles's commission was perhaps the reason why the return was afterwards confirmed by the Crown. But if allowed to be beyond their powers, still these regulations are no part of the assignment, but merely matter of advice and surplusage. 7th.-The Commissioners have declared all keys unlawful, except those contained in this and the former certificate. This repeals an act of Parliament, which establishes the wharfs above bridge, which are contained in neither of the certificates. Solution.-Wharfs above bridge are not within the port of London: the western boundary of which, by the LONDON WHARFS. return 19 Car. 2, is assigned to be London-bridge. And the The Case of the declaration of the present commission is expressly confined to all places within the port of London. Wherefore, upon the whole they prayed that the commission and return might be filed. *The Court took time to consider of it till the present Term, [ 590 ] and then PARKER, C. B., delivered the opinion of the Court.We are all of opinion, that this commission is not well founded. The designation of ports is part of the King's prerogative. He might make regulations therein by common law in order to secure his revenue: yet, without an act of Parliament, he could not impose new duties. To prevent frauds upon the revenue, the stat. 4 Hen. 4, c. 20, was made; but this, being found inadequate, produced the 1 Eliz. c. 11, which restrains the assignation of wharfs and keys to open places only. This was followed by 14 Car. 2, c. 11, which gives farther powers, but expressly prohibits all lading or unlading except upon open places. The power of the Crown to issue this commission depends entirely upon these statutes: and we think that power not well pursued. Not one of the words "open place, key, or wharf," is used in this commission. It is therefore materially different from all former precedents. And, as it does not pursue either the power or the precedents, it is not warranted, and must be quashed. The return itself does not find the spots. assigned to be "open places:" and Lord Hale (in a MS. in Lincoln's-inn library) lays it down, that private houses cannot be assigned for wharfs. The commission and return were quashed. EASTER TERM,-6 GEO. III. 1766.-K. B. Corporation of COLCHESTER v. Seaber. S. C. 3 Burr. 1866. [591] act, and there THE Corporation of Colchester by a series of illegal elec- Corporation, betions was so reduced, that no subsequent election of magistrates ing disabled to could be made, and was therefore in common acceptation dis- fore accepting a solved, and a new charter was granted by the Crown. And new charter, is now, upon an action brought by the new Corporation (a), the not dissolved, question upon a case reserved was, whether the new Corpora- and, after such tion succeeded to all the rights of the old one. Lord MANSFIELD, C. J.-The fact has, and may often happen, that by judgment of ouster against persons illegally elected, no regular election can again be had, and the corporation (a) It appears from the report in 3 Burr., that it was an action of debt on a bond executed to the old corporation, in 1735; that, in 1740, judgments of ouster were had against the persons then claiming to but dormant ; acceptance, is the same corporation as besue on a bond fore: [and may given to the original corpora be mayor and aldermen, and that they tion.] COLCHESTER v. SEABER. Corporation of is commonly said to be thereby dissolved. But till this case it was never doubted, but that by a new charter it was revived, unless where there is a change in the name or constitution, and even there, it has been determined to be still the same. It now comes on without a dictum in the books, by way of authority, to support the doubt: but it is said to be meant, as a ground for an application to Parliament, to determine, that what shall here be determined to be law, is unjust, and ought to be remedied. If such an application should be necessary for this corporation, the remedy ought to be universal, and extend to all corporations. But I am of opinion, that the corporation is not dissolved, but only deprived of its magistracy. The freemen are still entitled to their right of common, to votes for members of Parliament, &c. These privileges are not lost by [ *592 ] the ouster of a mayor. Sir James Smith's Case, in Shower (b) and 4 Mod. 52, is in point. The corporation is rather in abeyance, when it cannot act, than dissolved, and may be revived by a new charter. * WILMOT, J.-When a corporation accepts a new charter, it remains the same as it did before; Haddock's Case, Raym. 435; Case of Scarborough, 3 Lev. 237. If the corporation. were dissolved, the lands would revert to the donor; and the King, by his new charter, could not divest those rights, and regrant them to the new corporation. But, if only dormant, no such inconvenience follows. YATES, J.-Of the same opinion; and cited Lutterel's Case, 4 Rep. 87 b; Case of Wells, 1 Lutw. 508. ASTON, J.-Of the same opinion (c). (b) 2 Show. 263, 274, by the name of R. v. Mayor of London; Skin. 293, 310; 12 Mod. 17; Holt, 168, S. C. (c) It has been determined, in a subsequent case, that when an integral part of a corporation is gone, without whose existence the functions of the corporation cannot be exercised, and the corporation has no means of restoring it, or of doing any corporate act, the corporation is dissolved to certain purposes; that is, it is so far dissolved, that the Crown may grant a new charter to a different set of men and it is not necessary that it should be accepted by a majority of the remaining members of the old corporation; it is sufficient, if it be accepted by a majority of the grantees; R. v. Pasmore, 3 T. R. 199, where all the cases on the subject are fully considered, and particularly the principal one. Lord Kenyon, C. J." It has been said, that in the case of the Mayor of Colchester v. Seaber it was determined, that the old corporation was not irrevocably gone, though they had lost their magistrates. Lord Mansfield did not say in' that case, that the corporation could act, or that it was not dissolved to some purposes; but only that the King might renovate it, and when renovated, all the former rights would revive and attach on the new corporation, and amongst others the right of suing on the bond given to the old corporation." Buller, J.-" It was there thrown out, that the old corporation would not lose their rights of common and certain other rights. With regard to the rights of common, it was probably taken from a case in 2 Lord Raym. 953, where Lord Holt is supposed to have given such an opinion. But no authority is there cited for it. But if such a right were claimed, let us consider how it could be supported. If it were granted to them as a corporation, the persons claiming it must shew that there is a corporation in existence. And if they claim by prescription, they must set it up in the name of the old corporation but it cannot be set up in the names of persons who do not exist. Another case there mentioned is that of the Corporation of Scarborough, where it was said, that debts due to the first corporation remained, notwithstanding a change of name. Of that, no doubt can be entertained: for if the King intended to give rights to the new corporation, which were enjoyed by the old one, it was undoubtedly competent to him to do so. And this is the amount of what I suppose the Court intended to |