Published: Wed, 07 Mar 2018
Day v Savadge (1614) Hob 85; 80 ER 235
Trespass; custom; Parliament
Day sued Savadge for trespass after the latter took away a bag of nutmegs. Savadge claimed that it was customary in London for people to leave goods at the Queen-Hilthe wharf to be later taken away by collectors in return for a fee. The defendant claimed to be such a collector who did not receive the payment owed to him, so he was entitled to take Day’s nutmegs.
Savadge claimed that alleged the custom was, by authority of Parliament, capable of certification. Day disagreed and argued that the case should be tried by a jury and not by a certificate, as the latter would be against common sense and unlawful.
The Court found that there was no such custom as alleged by Savadge, no trial by certificate was granted or used in London. While laws peculiar to a specific place can exist (i.e. laws/customs different from those generally applying to the whole country), these are still subject to judicial control – as judges are experts of the common law. All in all, it was held that laws (even if created or confirmed by Parliament) that were contrary to natural equity – e.g. making a man a judge in his own cause – had to be automatically void. Courts were entitled to invalidate legislation passed by Parliament. The Court found that the laws of nature are immutable and that they are the laws of laws. The Court effectively negated the doctrine of parliamentary supremacy.
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