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ton, instead of per chaldron. If there be a valid custom to measure, that is not varied by the Act of Parliament. Goody v. Penny does not apply; it turned on the construction of a local Act, and had no reference to measuring or weighing.

Secondly, there was no evidence of the appointment of the plaintiff as a meter. No doubt, under some circumstances, the mere fact of a person acting as a public officer is primâ facie evidence of his appointment; but where the appointment is in terms traversed, conclusive proof must be given by the party seeking to establish it. [Lord Campbell, C. J.-There was abundant proof unless an appointment under seal was necessary.] There was no direct evidence of an appointment under seal, and any presumption of the existence of a deed is negatived by the facts: Rex v. Verelst (a). The rule as to an appointment under seal is not confined to cases in which an interest passes out of the corporation; but with the exception of certain small acts, as employing a servant or the like, a corporation can do nothing without deed: Mayor of Ludlow v. Charlton (b); Com. Dig. tit. "Franchises," (F. 13); Church v. The Imperial Gaslight and Coke Company (c), Paine v. Guardians of Strand Union (d). The plaintiff is not a mere servant, but an officer of the corporation. His right to maintain the action depends upon his holding an office to which certain fees are attached in consideration of the performance of certain duties.

Sir F. Kelly in reply.-The Mayor of Rochester v. Lee (e), is decisive of this case. There the corporation claimed a certain sum per ton for all coal imported into the port of Rochester, whether for sale or private use. Prior to the 5 & 6 Will. 4, c. 63, the claim was at so much per chaldron; therefore, unless that statute applies to this case, the

(a) 3 Camp. 431.
(b) 6 M. & W. 815.
(c) 6 A. & E. 846.

(d) 8 Q. B. 326.

(e) Q.B., Dec. 4th and 5th, 1850, not yet reported,

rate per ton, instead of per chaldron, was invalid. [Lord Campbell, C. J.-There it was assumed on both sides that the statute applied not only to coal sold, but also consumed.]-The effect of the statute is, that if there be a prescription in a corporation to appoint a meter to ascertain the quantity of coal imported, they must direct him to do so by weight, instead of measure. With respect to the other point, it is evident that the plaintiff is a mere servant, for he holds his office only during the pleasure of the corporation.

Cur. adv. vult.

The judgment of the Court was now delivered by

PATTESON, J.-The first question which we have to determine in this case is, whether the Lord Chief Baron was right in directing the jury, upon the second and seventeenth issues, "that the plaintiff had not given evidence of the right of the mayor, aldermen, and burgesses of the borough of King's Lynn to the sole and exclusive work, labour, and privilege of, on and since the 1st of January, 1836, weighing instead of measuring all coals imported into the port of King's Lynn, as claimed in both counts of the declaration;" and in directing the jury to find a verdict for the defendant on those issues respectively.

The plaintiff, alleging the immemorial custom for the corporation to measure all such coals till that day, admits that it is only under the statute 5 & 6 Will. 4, c. 63, the claim afterwards to weigh them can be supported; and it is quite clear that without the authority of Parliament a right to measure could not be converted into a right to weigh. The plaintiff's counsel, in arguing that there was no necessity for an inquisition at the Quarter Sessions, asserts that this case does not come within the 14th section of the statute, there not being a fixed sum payable for measuring coals at Lynn. They, therefore, renounce all benefit from that section, and they can only

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seek to avail themselves of the 9th section, which enacts,
"that after the 1st day of January, 1836, coals shall be
sold by weight and not by measure." But, looking to the
very singular right claimed on this record, we cannot see
how the exercise of it is at all affected by the statute.
It is not a right to any toll, rate, or duty, payable to the
corporation, nor a right at all connected with the sale of
coals. No purpose is pointed out for which the measure-
ment was made; and the only payment in respect of it
was a reasonable sum paid to the meter appointed by the
corporation for his work and labour in measuring. There
is no express enactment in the statute, that wherever coals
had been theretofore of right measured, they should there-
after be weighed; and we think that it contains nothing
from which such an intention on the part of the legislature
is to be implied. There are many purposes for which coals
may
still be lawfully measured, as to ascertain the amount
of freight, or warehouse-room to be paid for them, which
may be regulated by their volume and not their weight.
Nothing appears why the corporation of Lynn might not
have continued to ascertain the quantity of coals landed
in their port by measurement as before, and we think that
they offered no evidence of a right by themselves, or per-
sons deputed by them, to weigh coals against the will of
the importer. Goody v. Penny was an action of debt for
rates and duties imposed by a local Act of Parliament on
coals landed within a certain district, and there was no
doubt that the rates and duties were payable. The de-
cision there, that an inquisition by the lessors was unne-
cessary does not apply here, where a special action on the
case is brought for preventing the plaintiff from weighing
the defendant's coals, and no right to weigh them is esta-
blished. So the case of The Mayor of Rochester v. Lee,
referred to in the argument, has little application, as that
was an action of debt for a toll or port duty payable to
the corporation on the landing of coals within the port of

Rochester, and the proportion between the chaldron and the ton, to regulate the payment, had been duly ascertained within the 14th section of the Act of Parliament. On the first exception, we think that the defendant in error is entitled to our judgment.

The second exception depends upon whether there was evidence to go to the jury to prove that the plaintiff was one of the meters deputed and appointed by the mayor, aldermen, and burgesses of Lynn; which is denied by the twelfth and twenty-third pleas. The objection is, that an appointment under the seal of the corporation was necessary. If it was not necessary, there was abundant evidence which would have justified the jury to have found for the plaintiff on these issues. It is material to look to see how the custom is alleged. The declaration claims the right in the corporation "by the persons by them in that behalf from time to time deputed and appointed as thereinafter mentioned," and afterwards states that the corporation had duly and in the exercise of their said right in that behalf deputed and appointed certain meters, of whom the plaintiff was one. The declaration does not state as part of the immemorial custom that the meters might be deputed and appointed without seal, nor any particular mode in which they should be appointed. Therefore even supposing that a corporation by prescription might prescribe to do certain coporate acts without seal, which acts by the general law would require the use of a seal, which, however, we by no means intend to lay down as a law, still the custom must be so alleged, which it is not in the present instance. The corporation claim a right to measure by persons appointed by them. That alone would make the appointment merely that of a servant and might well be without seal. But the payment in respect of the measurement is for the benefit of the meter only, the corporation takes no part of it. The meter is the plaintiff, and complains of being disturbed in the exercise of his privilege. This shews that the meter

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claims an office to which certain profits, to be fixed indeed from time to time by the corporation, are annexed, and he sues for a disturbance of his right to that office. If he had performed the duty, he must have claimed the prescribed fee as due to himself. Now this right to discharge certain duties in regard to the property of third persons (although against their will), and demand payment for so doing, must be by reason of his having an office; and he is not a mere servant of the corporation, but an officer appointed by them; therefore he must have an appointment under seal. And we do not think that the tenure of his office, which is said to be during the pleasure of the corporation, can make it unnecessary that he should have such an appointment, or convert him from an officer into a mere servant. On this exception, therefore, as well as the other, we think the defendant entitled to succeed, and the judgment of the Court below must be affirmed.

Judgment affirmed.