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No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 249, 250.
merchants and tailors' company elect, 4; the tanners', 6; the ful. lers and dyers', 3; the smiths, sadlers, and armourers', 3; the cordwainers', 3; the weavers', 3; and the skinners and butchers'. 2. – In all, 24. The alderman presides at the meeting of his company when such election is made, and certifies the names of the persons so elected by the Company to the steward of the Court at one of the two Courts-leet held for the said borough in every year, — viz., the first Monday after the clause of Easter and the first Monday after Michaelmas-day; and the persons so certified by the respective aldermen to have been elected are there sworn and admitted burgesses or freemen of the borough. The grant of the 12th March, in the 6th year of the reign of King Edward VI., of certain lands in Northumberland for the maintenance and support
of a master and usher of a free grammar-school at Morpeth, [* 250] is to * the bailiffs and burgesses of the borough of Morpeth.
The charter of confirmation of all the ancient usages, toms, and privileges of the borough of Morpeth, dated 30th December, 15th Charles II., is to the bailiffs and burgesses of the said borough. The bailiffs and burgesses, at the time of making of the indenture hereafter mentioned, were seised in fee of the tenements therein mentioned, and such indenture was made as hereafter mentioned (that is to say)
By indenture, bearing date the 15th of September, 1794, and made between Edward Challoner and Thomas Clennell, bailiffs of the borough and corporation of Morpeth in the county of Northumberland, and John King, Thomas Bowman, William Scott, James Thompson, Ralph Bowman, and Robert White, aldermen of the said borough and corporation of Morpeth, with the assent and consent of all the free burgesses of Morpeth aforesaid of the one part, and William Wood of Buller's Green, in the parish of Morpeth aforesaid, weaver, of the other part, It was witnessed, That the said bailiffs, aldermen, and burgesses, for and in consideration of the yearly rent and covenants therein contained, did demise, &c., unto the said William Wood, his executors, administrators, and assigns, certain premises therein mentioned and described (being the premises in question), with the appurtenances, for the term of 21 years from Martinmas then next ensuing the date thereof, yielding and paying therefore yearly and every year, during the said term of 21 years, unto the said bailiffs, aldermen, and burgesses, and their successors, the yearly rent of £6 10s. of
No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 250–252.
good and lawful money of Great Britain, payable at Whitsuntide and Martinmas, by even and equal payments. And in case the said yearly rent of £6 10s. should be behind and unpaid for the space of 40 days next after the said days of payment, the same being legally demanded, that then and from thenceforth it should and might be lawful for the said * bailiffs, alder- [* 251] men, and burgesses, and their successors, into the said demised premises to enter and distrain, &c., &c. There was a clause of re-entry, and several other covenants, all made with the said bailiffs, aldermen, and burgesses. The indenture then proceeded thus : " And the said bailiffs, aldermen, and burgesses, for themselves and their successors, did thereby covenant and agree to and with the said William Wood, his executors, administrators, and assigns, that in consideration of the performing all and singular the covenants and agreements to be paid, done, kept, and performed on their part, it should be lawful to and for the said William Wood, his executors, administrators, and assigns, to have, hold, occupy, possess, and enjoy all and singular the thereby demised premises, without the lawful let, suit, trouble, or molestation of them, or any of them, or any of their successors, during the term thereby granted. And the said indenture concludes thus : “ In witness whereof we have hereunto set our hands and seals, the day and date first above written.” The said indenture was signed and sealed by the said bailiffs and five of the said six aldermen, with their Christian and surnames, and their private seals annexed, but the common seal of the borough was not affixed thereto; it was duly executed by the said plaintiff being the said lessee, by his signing, sealing, and delivering the same. The plaintiff, being the said lessee, upon the making and executing of the said indenture, entered into the said demised premises, with the appurtenances, and was possessed of and enjoyed the same until the time of making the above mentioned distress. The sum of three pounds and five shillings, for half a year of the said rent of the said demised premises, with the appurtenances, at Whitsuntide, one thousand eight hundred and three, became due and payable from the plaintiff under and by virtue of the same indenture, and until and at the time of making the said distress, was and still is in arrear and unpaid. * The rent that had (* 252] before accrued due was always paid by the plaintiff to the bailiffs of the said borough for the time being. On the third day
No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 252, 253.
of September one thousand eight hundred and three, notice in writing was signed by James Bowman, Thomas Clennell, John Daglish, Robert Creighton, John Singleton, Nicholas Henderson, and Francis Singleton, the then aldermen of the above-mentioned companies or fraternities, at a meeting called by those aldermen as a common guild, but without the concurrence of the bailiffs, and for which reason the bailiffs did not attend it, although they had notice, and was on that day given so signed to the plaintiff to pay the rent due at Whitsuntide then last to them the said aldermen, or to whom they should appoint. Thomas Clennell, who signed the above notice, was the Thomas Clennell mentioned party to the above indenture of lease. In consequence of this notice the plaintiff refused to pay that rent to the bailiffs of the said borough; and on the twenty-eighth of the same September the distress was made.
The seven aldermen who signed the above notice were the aldermen of the respective fraternities above-mentioned, not only at the time of signing thereof, but also at the time when the last mentioned half-year's rent became due; and at the time of the distress, Benjamin Woodman and Robert Nevins, who then and at those times were the bailiffs of the said borough in the latter end of August, one thousand eight hundred and three, gave a verbal authority to Mr. Henry Brumell, attorney-at-law, to distrain for this rent, who then told them that he had applied to the defendant for that purpose, which they approved of.
The usage with respect to the custody of the common seal of the borough has been and is as follows: The common seal is kept in a chest or hutch belonging to the corporation, called the corporation hutch, which is locked with seven locks, the keys of which
are kept by the seven aldermen, each of them keeping the [* 253] key of a different * lock. The bailiffs keep the key of the
door of the room in which the hutch is deposited and locked, and the aldermen cannot, without violence, in fact enter the same room without the consent of the bailiffs, nor can the bailiffs in fact get, without violence, at the contents of the corporation hutch. The aldermen attend the Court-leet, not only as suitors to those Courts, which they and all the other burgesses, when resident within the borough, are, but also for the purpose of certifying, and there they do severally certify to the steward of the said Courts the names of the free brothers who have been No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 253, 254.
recently elected of their respective companies or fraternities for burgesses or freemen. With respect to the bailiffs accounting, when they go out of office, for the receipts and disbursements, it appears from the book of the corporation, by the entries thereof from the year 1576 to the year 1791, both inclusive, that in 98 years, at various periods of that time, they accounted with the succeeding bailiffs, no other person being described as present; and in 75 years, at various periods also of that time, they accounted in some instances with the succeeding bailiffs, in the presence of the aldermen, and in other instances with the succeeding bailiffs and the aldermen and others, and in some instances, from the year 1752 till the year 1791, the accounts were signed as allowed, sometimes by the bailiffs only, and sometimes by the bailiffs and aldermen, who were present; and on such their accounting in the following years, (that is to say) 1598, 1608, 1609, 1613, 1616, 1617, 1618, 1763, 1766, and from thence in every year until and in the year 1774, and also in the year 1777, and from thence in every year until and in the year 1791, the balance is stated in the entries in that book either to be put into the corporation hutch or paid to the succeeding bailiffs, for the town's use.
The following entry also appears in that book, with the names of two persons * described bailiffs, and five others described [* 254] aldermen (that is to say), “ 16th March, 1671, Memorandum, that the day and year abovesaid, at a meeting of the bailiffs and aldermen, and the burgesses, in the Tolbooth, it was unanimously agreed upon, that the bailiffs, every year, at St. Andrew's day, after they are out of their office, shall give to the succeeding bailiffs and aldermen and burgesses a true and just account of all monies received in their year. As witness our hands."
.But this entry is made in a part of the book distinct from the other entries; and the entries for the next ten succeeding years are of accounting before the bailiffs only for the town's account.
The question for the opinion of the Court was, Whether the plaintiff was entitled to a verdict on the above issues? If not, a verdict was to be entered upon all or any of the above issues as the Court should think the said parties, or either of them, entitled.
Best, Serjt., for the plaintiff. The question intended to be raised by this action is, Whether the aldermen of the borough of Morpeth have any right to interfere in the letting of the premises upon which this distress was taken ? But as it appears that the
No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 254, 255.
aldermen are parties to the lease under which the plaintiff took the premises, and the rent is therein reserved to them, all argument upon the respective rights of the different members of the corporation seems to be precluded, since, without the concurrence of the aldermen, no distress can be taken. [The Court observed, that the lease not being under seal of the corporation was not valid, and that the corporate name was, “ the bailiffs and burgesses of the borough of Morpeth,” under whom the defendant made cognizance.] The lease under which the plaintiff took the premises is
stated to have been made with the assent and consent (* 255] “ of the bailiffs and burgesses. Payment of * rent to any
person makes him who pays tenant to him who receives, and in this case rent has hitherto been paid to the corporation; nor does that payment cease till some of those persons who joined in the lease under which the plaintiff took, gave him notice not to pay. In order to recover upon these issues the defendant must inake out that the plaintiff is tenant to those who directed the distress to be taken. Now supposing the plaintiff not to be tenant under the lease, but only by payment of rent; still the rent, though paid to the bailiffs, has been paid to them as officers of the corporation under which the plaintiff held, and does not warrant the attempt now made, — viz., to construe the payment of rent to the bailiffs in one character, as a payment to them in another character. If B., C., and D. join in leasing, they must also join in taking a distress. Here the plaintiff has been in the occupation of premises belonging to the corporation, and has paid his rent to the proper persons, supposing him tenant to the corporation, and holding immediately under them. If A. hold land of B., C., D., and E., and pay his rent to B. and C., he does not thereby acknowledge himself tenant to B. and C., but to B. C., D., and E. The reddendum in the lease is to the “ bailiffs, aldermen, and burgesses."
Lens, Serjt., contra, was stopped by the Court.
Sir JAMES MANSFIELD, Ch. J. This is a sadly perverted case, and brought here with a view which, as the facts now stand, can. not be attained. It is a contest between two parties in the corporation; but the only question to which we can address our attention is, Whether there be enough stated to enable us to say, that the distress has been properly made? The name of the corporation appears to be “the bailiffs and burgesses of the