The Express.
London, England, 1867-01-23 00:00:00

LIW INTELLIGENCE.
(THIS DAY.)

COL' lIT OF ('HANCERY.
baore the (.1,zi0.)
I. INu ('UN I'.\N'.--.\PPLICtTI,N IA
r_mty JI:111.1s.

7•..1.y the application on the part of Major Jervis to
• •,.• his name from the register of shareholdi n,, w ilia
I.,iiiite the chief clerk (Mr. ('hurch) of the Master of
"lid reported in the E pr taa on Friday, was
i• The interests involved were considerable. :mil
oinun was to substitute the Contract Corporation.
Mi•-•.rs IMoi.ely. of Liverpool. as the contributories on
s .o,mial that Major Jervis and others were merely
•• es or trustees (or the Conti Act Corporation, now
•i, I a winding- up older.
;oak limn iittendial to ask the asaistance of the chief
l• ,k. 1k add he saw it mentioned that Any shareholder
•••:1•I apply to he taken oil the list. He sa A shareholilor
certainly like to be taken off, and seeing the state-
., tit he wished to know how be was to proceed.
The hief clerk (Mr. Church) said hi: could take out a
to he removed from the list, but advised him to
i•qoult a solicitor before he proceeded. No doubt a
~:;ixr of shareholders would like to be removed from the

n.,ar.s. Edwards, on the part of Major Jervi., said the
Wall Certainly most important. Large interest.,
ed, and they wished the case to go before the
Itl.,•ter of the I:011a.

Mr. Micha..l Abrahams appeared for the ligublators of
!I: Contract CorpotAtion, and Emshe tor M.. 3,1%.
. . .

Atter a diet union between the parties,

The Chief Clerk adjourned th‘e applicaticrl. In ....out
days he would go into the matter, and say whr !Jur it
waa a cave of such magnitude and importance that it
,:iould go before the Judge.
t infer accordingly.

(7(4:HT OF QI:EEN'S BENCH.

in the Lord Chief :Justice and

IllaCkburn, Mt.llnr,and
HUI ANT

was an action tried before the Lord Chief Justice
i.,.11.11ia1l to recover damages from the defendant, who
e the rector of Horton, in Buckinghamshire, for
f.,.ing to marry the plaintiff. The action, ill
i,T. was to try the right of the rector to
Calm a certain fee. After the case wan opened
a.. facts were turned into a special case for the
..latical of this court, with leave to their lordship. to draw
',nee!. of facts. To-day their lordships gave judgment
in the cis... The judgments were written ones, and
eLsre.l hedorically and legally the question and law of
,Atoni and prescriptive righte. An litr. Justice Black-
i '.ll.hicre..l from the other learned judges, their lord-
ered their judgments seriatim.
Mr. Justice Mellor said the question in this case was
ebethei the rector of Horton could charge a certain fee
fen the celebration of marriages in that parish. It appeared
th.,t train treet to Is:4 the fees actually paid to the rector
bel been his, lid. and 13s.,with an occasionally varying ad.
da.onal stun from 2s. 6a. to 3s. 6.1. for the publication of
ti.c una. It was argued for the plaintiff that there was
ha customary fee or duty pays.ble to ti:e parson and clerk,
ond that the fee of 13e. or 13s. 6d. was an mure.u.
...able sum, and, consequently, void. The question,
therefore, fur the court to decide was, whether Bee
or 13s. 14., the sum claimed, could be sought to be conei-
dired under the circumstances, to have haul a legal origin.
1:t upon the analogy of a 1110111111 being illegal on
the ground of its rankness, lie was of opinion that the
isekness of this claim on the ground of ininsemorial cus-
tom fromparitg the value of money) was destnictive of
its claim. This fee appeared to him to be
at the present time disproportionate when they
cemidcred the mount claimed was larger in
many cases than the average amount of weekly
wages in agricultural 'wishes. By the late Marriage Act
it was. settled that the registrar's fees in case of licence
should Le Ins. and otherwise ris. If, therefore, the sum
claimed was now considered large what mast it have been
in the thee of Richard 1., from which time legal memmy
dates:' Historically, therefore, the claim could not beaky-
ported, for it would have had the effect of prohibiting mar-
riages altogether in agricultural psrishes. l'pon that ground
he was compelled to say that the amount claimed did not
and could not have existed. Was the claim, therefore, sup-
portable on the decisions of custom? He thought not, and
that the court ought not to presume a legal origin
against the absolute conviction, as jurors, that it never
did :old never could have existed before or from the time
of legal memory. Their judgment must be for the
plaintiff.
Mr. Justice Blackburn said there was no evidence what
the fee was before 180 d, but since then it had
ranged in some instances from 10s. lid. to Le. 6a. There
were fair inferences of fact that that 13s. was the right
fee. Marriage fees were not due of common right, but by
immemorial custom fees might be claimed. He thought
there was CVI.ItIICC of the custom of a reasonable fee
having been paid before and since the time of legal
bionory, which in process of time had been
ti‘ed .it Lfs., and that the claim fur that sum
was good upon the principle that a case
was as applicable to a parishioner as to a parish officer for
the whole of the inhabitants. The fairness or not of a
claim based on the change in the value of money was un-
satisfactory, and on that head considerable allowance
ought to be made. He thought they ought to find that
the usage was immemorial, and that the fee was ancient,
and that the presumption was in favour of its ancient
origin. The judgment of the court ought therefore to be
for the defendant

The Lord Chief Justice said he was of opinion that this
claim could not be upheld in law. It was clear that such
a fee could only be claimed by immemorial custom in a
parish. The first question they hail to consider was whether
the evidence established its payment from the time of
legal memory. From 18014 the foes paid in a considerable
majority of instances were 10s. for the rector and :is.
for the clerk, in a few instances 12a. rid. for the rector
and 4. for the clerk, and in a small number of in-
stances • still higher fee bad been taken.
Taking it therefore as it bad been shown that this custom
bad existed since PM, ought the court to presume its
previous existence for an indefinite period—extending as
far back as legal memory, but with this important qualifi-
cation, that it was only applicable when the presumption
of its immeinoriality could not be rebutted, or that the
custom could not have existed at that date. In this case
the presumption was inadmissible, and the custom, what-
ever its duration, had no binding validity in law.
This was a rural parish inhabited by a large number of
agricultural labourers, and 13e, in our days was a very
considerable sum to that class. It was impossible, there-
fore, to believe that, looking to the relative value of
money and the disproportion taken at the most moderate
rate, that such a payment existed or bad been sub-
mitted to at the time of Richard I. or since ; and
if reference were made to the amount of wages
by which, by the Statute of Labourers, the labouring
classes of that period were alone entitled, he thought it
impossible to entertain the shadow of a doubt of this fee
being altogether out of the question at that early period.
Were they, then, to do violence to their consciences as
jurymen and as judges by holding that this custom dates
Mck to the time of legal memory, when they must be con-
vinced that such could not be the ease! The law of
presumption was a bad and mischievous law, and discredit-
able to a civilised and an enlightened people, to carry it
back for 700 years, but so it was, and they must ad-
minister it as they found it, and consequently they were
not warranted in getting rid of its effect by subtle fictions
and artificial convictions inconsistent with the law and its
effect. Unsatisfactory, however, as that law was, the
court must be bonnil by it. In the case of a modus, the
rankness was decided by the amount to be paid
looking to the comparative value of money
that the sum claimed was not such as would have been
paid by arrangement. That principle was applicable to
this claim. Being convinced that this was not a customary
payment, which could not possibly have existed in the
time of Richard 1., and was not in a legal sense an imme-
morial one, he felt bound to give judgment for the
_ _

Mr. Justice Lush, who had not written his judgment,
said he concurred entirely with the Lord Chief Justice
ILTIII .Justice Mellor._

Judin;;;t7;;Ti; plaintiff.

COURT OF COMMON PLEAS.
fittings in Banco.---I Before Lord Chief Justice Bova], and
Justices Wile., Keating, and Smith.)
DOWNING 0. CAM..
The plaintiff was a greengrocer, living in London, and
the defendant WAY a magistrate for liertfordshire, and his
residence was near Watford. One morning the defendant
not the plaintiff and his eon hawking pineapples in Wat-
ford, and ho bought two for rm., and directed the plaintiff
to deliver them at the house. The defendant believed that
he had paid for the fruit, but the plaintiff was paid by
the butler; but was afterwards given into custody
for obtaining money from the butler by fraud. The pin-
ata action was to recover damages for false imprison-
ment, arol at the trial a few days ago it was conceded
th it the defendant had acted in the honest belief that
the 5v had been paid twice over, but the jury found
that he was mistaken as to the act, and they awarded
the plaintiff ;fflf., and his son, who had brought another
action, 10/.
Gifford, Q.V., now moved for • rule to enter a
h"‘nit, and submitted that the case CAWS within the
Act of the 24th and 25th,Vict., which said that any person
" imm.l committing" any offence punishable by indict-
ment or summarily might be given into custody, and
any person sued for false imprisonment in consequence of
so yavimr into custody should have notice of action so as to
enable him to settle the matter. In this tale there had
teen no notice of action. Another point was that the
thfcndont was acting in his character of • magistrate,
hid was on this ground also entitled to notice of action.
The court after a good deal at dismission as to the law
the matter granted • rule, but suggested that it was •
ease in which it would be prudent to come to an amicable
attlement.