Both parties to the dispute over payment of toll fees at the Toll outside the Baptist Church in Queen Street in 1840 were well-respected residents of Port Elizabeth. Mrs. Chase was daughter of Frederick Korsten, the wife of the late John Damant who died in 1825 and then the wife of John Centlivres Chase while the Toll Keeper clerk was one Richard Tee junior, the son of a property mogul and a founding member of St. Paul’s Church in Albany Street, also called Richard Tee.
It was while he was the “toll keeper of the Toll of Port Elizabeth” that Richard was involved in one of those cases which never should reach court (the sum involved was one shilling and four pence!), but which even reached the Circuit Court. As is so often the case in matters of this nature, each party no doubt felt that a matter of principle was at stake.
Main picture: The original toll used to be on the opposite side of Queen Street to the Baptist Church which hosted its final service in 1959
On Monday, 18 May 1840, Mrs. J.C. Chase and her son Frederick Damant were on their way into town on an ox wagon to which an empty horse wagon was tied. The horse wagon was being taken into town for the purpose of undergoing some repairs. Arriving at the tollgate, Mrs. Chase gave young Richard, who was employed as a collector by his father, the sum of one shilling and asked for change as there were ten oxen on the wagon and the toll payable was eight pence.
Richard took the shilling and said it was not enough. When asked by Mrs. Chase as to why it was not, he replied that she had to pay for two wagons. This she refused to do, and according to the young Frederick Damant, she offered to leave the horse wagon at the toll, but Richard would not allow it. Mrs. Chase then ordered the wagon to proceed, but Richard stood before the oxen and stopped them. At that stage the oxen were through the gate, but the horse wagon, which was fastened to it, was not. Damant then asked Richard for a ticket, saying that he would pay the money, but Richard refused to give him one, saying that he had to have the money before he could give a ticket.
Frederick Damant then left to call his stepfather who arrived, no doubt duly incensed and indignant, and asked Richard what he meant by stopping his wagon? When asked where the ticket was, Richard replied that it was up at the house and on being told by Chase to fetch it, he did so. Chase then paid him one shilling and four pence and asked him why he would not allow the horse wagon to be left behind, whereupon Richard denied that Mrs. Chase had made such a request.
The wagons then proceeded on their way, but that was not to be the end of the matter for that same day Chase, who was a Notary Public, issued a summons out of the Resident Magistrate’s Court against Richard Senior claiming one shilling and four pence, being an amount wrongfully and unlawfully demanded from him, and paid by him, as toll duty on two wagons passing the toll, in contravention of Clause 2 of Local Ordinance No. 8 (which provided that the toll had to be set up at a place within the distance of half a mile from the market place).
On the summons being served on him the following day, Richard stated, “I don’t know that I owe him anything”. The matter was set down for hearing on the 21st when Charles Whitcomb appeared for the Plaintiff and the Defendant appeared in person. Richard objected to short service of the summons, stating that he had not had forty-eight hours’ notice as required by Rule of Court No. 11. Mr. Lloyd, the Resident Magistrate, then adjourned the case to the following day. That day the parties as before appeared and Richard once again objected to the summons on the same grounds. His point was that once there had been short service of a summons, this could not be cured by the matter being adjourned. The Magistrate overruled his objection whereupon Richard left the Court. Young Damant then gave evidence and so did John Thornhill whose evidence was to the effect that on 20 May 1840 he had measured from the extreme point of the Market Square to the toll bar where the toll was levied and that he had found the distance to be 3,670 feet, or 5 furlongs and 370 feet, being 1 furlong and 370 feet (about 314 metres) more than half a mile. Interlocutory judgment was entered for the Plaintiff, with costs, and the same day a notice of the judgment was served on Richard in terms whereof he was called upon to show cause on 26 May why the interlocutory judgment should not become final and absolute.
On 26 May the parties as before again appeared before Lloyd and Richard submitted a written statement again objecting to the proceedings on the same grounds as before. He also referred the Court to Rule 20 which provided that a case could not be heard in the absence of a party unless the Court was satisfied that the summons had been duly served, which it had not. He requested the Court in any event to adjourn the matter for a rehearing to enable him to call the Civil Commissioner whose attendance he had not been able to procure before. He also submitted an affidavit to the effect that the summons had not been served on him until about three o’clock on the afternoon of the 19th. However, despite this, judgment was entered for the Plaintiff with costs amounting to 19s. 6d. and on 2 June a warrant was issued against Richard’s goods and chattels for the recovery of the claim and costs. The warrant was duly executed.
That was not, however, to be the end of the matter for on 19 October Attorney J.G. de Villiers instituted proceedings in the Circuit Court, on Richard’s behalf, against the Resident Magistrate and Chase, seeking an order that the former produce the court records before the Court and that the latter should show cause why the judgment should not be reviewed, set aside and corrected, on account of it being contrary to law and the Rules, Orders and Regulations of the Court. At the hearing the Circuit Court, inter alia, ordered that the case be reopened and that Richard be given full forty-eight hours’ notice of the time appointed for the hearing of the matter and that the evidence be taken anew. It was further ordered that each party should pay his own costs as to and for the proceedings in review.
As no further litigation between the parties has been traced, it would appear that each felt that he had made his point – or perhaps it was the thought of the farther legal costs which would be incurred which made them decide to call it a day?
Source
A Genealogy of the Tee Family of Norfolk by Brian Tee Senior (1998, Perth, Western Australia)