burrow mayor OF yarmouth versus eaton Tuesday that June toll through require a  consideration to be show to support the demand of it because it be against  common right this be a action upon the case on assumpsit the declaration  contain ten count which in substance amount to no more than this that the  plaintiff and those who estate they have have have and receive and be use and  accustom and have a right to have and receive a certain toll upon exportation  of corn and grain from their port of great Yarmouth to part beyond sea and  that the defendant export certain quantity of corn and grain without pay the  toll the defendant demurrer special to the six first count and also to the  nine and to the that that and that he plead the general issue non assumpsit  the plaintiff join in demurrer upon the other seven count the present argument  turn single upon the cause of demurrer to the first count which same cause be  also assign in the other six demurrer so that it will be sufficient if this  first count be particular state without meddle with the rest it be in these  word whereas the borough of great Yarmouth in the county aforesaid now be and  from time whereof the memory of man be not to the contrary have be a ancient  borough and whereas the say mayor alderman burgess and commonalty of the  borough of great Yarmouth aforesaid on the first day of may in the year of our  Lord and long beforehand ever since have and receive and have use and be  accustom and of right ought to have have and receive and still of right ought  to have and receive a certain duty or toll call measurage of and from every  merchant export corn or grain in any ship or vessel from the port of great  Yarmouth aforesaid to part beyond the sea tow it two penny by the last for  every last of corn or grain measure and export as aforesaid the say mayor  alderman burgess and commonalty in fact say that the say Christopher Eaton  between the say first day of may in the year of our Lord and the first day of  April in the year of our Lord be a merchant export as aforesaid do export in  certain ship or vessel from the port of great Yarmouth aforesaid to part  beyond burrow the sea diverse last of corn and grain to wit last of corn and  last of grain measure by reason of which say premise the say Christopher Eaton  become liable to pay to the say mayor alderman burgess and commonalty the sum  of of lawful money of great Britain be two penny by the last for every last of  the say tear and grain so export by he as aforesaid that be to sa at great  Yarmouth aforesaid and be so liable the say Christopher in consideration  thereof after ware to wit on the same first day of April in the year of our  Lord at great Yarmouth aforesaid undertake and to the say mayor alderman  burgess and commonalty then and there faithful promise to pay to they the say  sum of when he shall be thereunto afterward require the special cause of  demurrer be assign by the defendant in the follow word and for cause of this  demurrer in law the say Christopher accord to the statute in such case make  and provide assign the follow objection that be to say for that the say mayor  alderman burgess and commonalty have not show or allege in the say first six  count of the above declaration or in any of those count any benefit which the  say corporation perform or be bind to perform to the public or any cause or  consideration whatsoever upon which their pretend prescription be find and for  that the say six count be and each of they be in other respect insufficient  and defective in form c the single question upon this demurrer be whether it  be incumbent upon the plaintiff in this action on assumpsit to set forth in  his declaration a consideration for the toll which he demand it be argue first  on Friday the that of April last by Mr Yates for the defendant and Mr Wallace  for the plaintiff and again now by Mr will for the defendant and Mr solicitor  general Norton for the plaintiff the counsel for the defendant argue that as  this be not a action bring against a wrongdoer for a tort but a action ground  upon a demand of a right it be necessary for the plaintiff to show a  consideration for the right he demand and to prove the distinction between  action against wrongdoers for tort and action which demand a right they cite  Owen escot against Laurene in b r and it be more especial necessary in the  present case as this be a burrow claim burrow er p against the general and  common right of the subject which be antecedent to every usage and  prescription and ground upon a prescription which affect the public to support  this manner of reason they cite cro James Buckingham v Costendine where a  declaration in assumpsit be hold to be ill because it do not show for what  cause the debt become due and they observe that a man can not prescribe to  have thoroughtoll without allege a special consideration they cite and argue  from the case in Ro Abr title toll letter b pl sir William Jones roy v  corporation of Boston more smith v shepherd Mod Haspurt and will Mod warren  and Prideaux lev Prideaux v warn SC Lutw Wilkes v Kirby and sir I S Sarjent v  reed and Mod Warrington v Moseley prove they say that some reason ought to be  show why this duty be claim so also do the case of the mayor of Nottingham v  Lambert g in c b on a special verdict where no consideration appear the court  will not intend any and give judgement against the plaintiff there be no  difference they say between its be upon a declaration and its be upon a plea  where the question turns upon a claim of right especial where the claim be  against the general right of the subject they make a difference between  prescription for private right and prescription that affect the public they  admit that in the former a consideration may be imply but in the latter a  sufficient consideration must be show they admit also that even in this case  if it have appear upon the declaration that she corporation be owner of the  port that will have be a sufficient consideration but it do not appear any  where upon thisdeclaration even that the corporation be owner of the port the  public be the owner of it and the imply consideration for a portduty can only  be where the plaintiff be owner of the port h hob Topsall v Ferrer the counsel  for the plaintiff answer that through toll have no similitude to the present  case that be for pass through a town in the highway which by burrow commonlaw  and common right be free to every body therefore it may there be necessary to  allege a special consideration but the present case imply a consideration it  be a port grant to the corporation and be make out of private property the  public therefore in this case enjoy a benefit which it have no pretence of  claim to by commonlaw and this alone be a sufficient consideration Lutw Wilkes  v Kirby be the same point as the present and though that case be not determine  yet the court strong incline that the owner of a port may have a toll by  prescription without allege any consideration but lev mayor and commonalty of  London v hunt in the exchequer Chamber be in point it be assumpsit for  weighage of good bring into the port of London and objection be take that  there be no consideration for the duty but it be resolve that the defendant  have the liberty of bring they into port which be a place of safety and it  therefore imply a consideration in itself and so also be a late case in c b  the corporation of Exeter v Tr Tr g where the title to the toll be set out  precise as it be here and the defendant demurrer general to the declaration  the case be twice or thrice argue upon this very objection now take here that  no consideration for the duty be set forth and all the objection there take  which be the same as be now take be overrule and it be hold that if it have go  to a trial the plaintiff must have prove a title and that a liberty to bring  good into a port be in itself a good consideration for the toll as to its not  appear upon the face of the declaration I that the corporation be owner of the  port we have show that they have always be accustom to receive the toll and  that they always have receive it and that they be entitle to receive it and  all this must have be prove at the trial if it have go on to a trial and if  their be owner of the port be necessary it must have be prove at the trial but  however a person may be entitle to the toll without be owner of the burrow er  p port for the crown may sure grant the duty though they retain the port and  the grantee may prescribe for it burrow this be good enough on demurrer it be  not assign for cause of demurrer and it be therefore upon the same foot as if  it be a general demurrer in assumpsit the debt be the consideration Hibbert v  Courthorpe Carth the counsel for the defendant in reply admit that if good be  bring into a port and unladen a consideration for the duty to the owner of the  port shall be imply but here the plaintiff do not show that they have any sort  of right to the port or any thing to do with it the case therefore where the  plaintiff have a right to the port do not apply to this case where they have  it not but case of thoroughtoll be applicable to the present case as they  prove that a public right can not be abridge without a consideration and  though in private prescription a consideration man be imply yet in those which  go to the abridgment of public right it be not so the only case in point cite  on their side be that of the mayor of Exeter v Trinlet but it be a single case  and be contrary to that of the mayor of Nottingham v Lambert and be on general  demurrer whereas this be on special demurrer for this cause particular assign  upon a general demurrer the court may not consider it as matter of substance  if the crown can grant the duty reserve the port yet the plaintiff must show  the grant Lord Mansfield this be a very plain case indeed the plaintiff set  out that they have a right by prescription to the portduty of Yarmouth the  question be whether they be oblige to set out a consideration the only case  like the present be case for port duty the rest be all out of the case the  make a port be itself a consideration it be a selfevident convenience to the  merchant it speak for itself it may never require repair therefore I do not  know that it be necessary to show repair the ownership of the soil be out of  the case burrow but here be a precedent in point establish by a judgement of a  court in westminsterhall upon solemn argument and after consider all the  former case and precedent and this precedent be punctual follow in the present  case this alone will be sufficient if the reason of the thing be not so strong  as it be a Mr justice denison also think it good notwithstanding the special  demurrer he think the title sufficient show a port may not want repair in l  year the declaration show a prescriptive title time open of mind for these  portduty the consideration be selfevident videlicet the benefit to the subject  it be not necessary to show that the corporation be owner of the soil or  repair it it be not now necessary to show repair of a pew in a church because  it may scarce ever want repair and here be and establish precedent beside the  selfevident consideration this be not like the case of tollthorough Mr justice  Wilmot remember the case of the mayor of Nottingham v Lambert and observe that  though that be say there that the plaintiff can not have recover for want of  show that the corporation be lord of the manor yet it can not alter the  judgement in that case as to the considerationIt be most full settle in the  case of the mayor of Exeter v Trinlet it be clear hold that in a tollthorough  a consideration must vide ves that petit custom be different from toll per ld  Hardwicke and vide Com ace note that the case in will on which this be  determine arise upon a prescription for the former and not for toll as in this  case and it seem contrary to principle and all former authority that a title  to the latter shall be maintain with a consideration and it be also observable  that the case in will be determine on a special and this on a general demurrer  and N B the petit custom be confirm by Act of parliament force dig of cust  burrow er p be show because against common right but that a portduty do of  itself imply a consideration to support it this I take to be settle the next  question be whether the corporation have show a title to receive it and I  think there be such a title show the crown have a right to create b the duty  and to grant c the duty to another this prescription be equivalent to such a  grant and presuppose it per cur judgement for the plaintiff burrow but Mr will  pray leave to withdraw his demurrer and to have leave to plead which the court  think reasonable and Mr Solictor general consent though it be ask late and  after a rule to plead as they will stand by court grant Lord Mansfield well I  hope the precedent of this declaration be now sufficient establish