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lationis, or contra formam feoffamenti, a writ of mefne, and fuch other poffeffory writs as were applicable to their case (a).

If a dean and chapter had been diffeifed, and afterwards the dean had died, the fucceeding dean and the chapter might have had an affize of novel disseifin, because, though the dean diffeifed was dead, the chapter remained, which was compofed of perfons capable.-But, it was otherwise of an abbot and convent, because, if the abbot died, there remained no períons capable, and therefore the fucceeding abbot must have had recourfe to his writ of entry in le quibus (b).

THE modern method of trying the title of land by ejectment, extends to corporations of every kind, whether in the character of plaintiffs or defendants (c).

IF a trespass be committed on the lands or poffeffions of a corporation, they may have an action of trespass as well as a private person (d).

So, they may maintain an action of trespass on the cafe for a disturbance in holding their leet, or taking the profits of liberties granted to the corporation (e).

A GREAT part of the revenues of corporations confists. of certain duties leviable within the limits of their jurifdictions, and if payment of any of them be refused, they may recover them by action of debt (ƒ), or indebitatus affumpfit.

AN indebitatus affumpfit was brought for the duty of fcavage, in which the declaration was on the custom of

(a) Id. ibid.

(b) 1 Ed. 5, 5. a. Bro. Corpor. 86. (c) For fome examples vid. 1 Anderf, 202, 248. Rector of Chedington's cafe, 1 Co. 153.

(d) 21 Ed. 4, 75.

(e) 45 Ed. 3, 2. b. (f) Hardres, 486.

1 Ed. 5, 5. 7 H. 7, 9.

18 H. 6, 11. cited Com. Dig. Franchises, F. 19.

London,

London, "that every one who exposed foreign goods to fale, which had been entered in the custom-house, should pay so much for fhewing them :" after verdict, it was alledged in arrest of judgment, that no affumpfit lay for fuch a duty, because to maintain affumpfit there ought to be a contract exprefs or implied; and it was further faid, that as the customs of the city were confirmed by parliament, this was a duty by record: but the objection was not allowed, because there were a multitude of precedents in fimilar cafes (a).

FOR fuch duties they may likewise authorise their officer to diftrain.

An action of trover was brought against the defendant for an anchor, fails, and cables-on the plea of not guilty, afpecial verdict was found to this effect; "that the town of Newcastle upon Tyne was, time out of mind, an ancient town in which there was an ancient port; that the mayor and burgeffes had, time out of mind, been used to cleanse and maintain the faid port for the fafe navigation of ships, and for the benefit of exportation, in confideration of which they had used to have a toll of 5d. per chaldron for all coals exported; that for default of payment, they had ufed, by their water-bailiff for the time being, to diftrain whatever goods of the exporter, who refused to pay the toll, were diftrainable by the law of England; that the defendant was water-bailiff, conftituted by the mayor and burgeffes in due form; that the plaintiff loaded fo many chaldrons

(a) City of London v. Goree, 1 Ventr. 298. Vid. the cafe of the mayor of Exeter v. Trimlet, 2 Wilf. 95. The cafe of the mayor of Yarmouth v. Eaton, 3 Bur. 1402. Mayor of Kingston upon Hull v. Horner, Cowp. 102: and Seward v. Baker, 1 Term. Rep. 616all of which shew that a general indebitatus affumpfit will lie for fuch

duties.

of

of coals, the duty of which for toll amounted to 71. and that on payment being refused, the defendant diftrained the anchor, fails, and cables, which were part of the tackle of the plaintiff's fhip.

SEVERAL objections being taken on the part of the plaintiff, Lord Chief Juftice Holt faid, "that there was no neceffity to aver here that the port was actually in repair, for that the confideration was alledged to be, that they had, time out of mind, been used to repair, which was, in fact, that they were obliged to repair, and not the actual repairing: that the duty of 5d. per chaldron was not unreasonable, for that the court could not take notice of the price for which the coals were fold; that to speak properly, in the way of trade, the owner of the goods was the exporter; but that as to the duties of the port, the master of the ship was the exporter, and satisfied and discharged all fuch duties; for that it would be highly unreasonable to drive the mayor and burgeffes, or the owner of the toll, to fend to feek the merchant'; that this was the conftant ufage that it was reasonable that fuch duties fhould be paid, for that without ports there would be no navigation, and that without a duty the port would not be repaired." He cited the case of Maldon in Effex (a), where the corporation prescribed, that they and all thofe whofe eftate they had, had used for time immemorial to repair the port, in confideration of which, they had immemorially used to receive, for all lands fold within the precincts of the borough, a certain rate of 1od. in the pound out of the purchase money he obferved, "that this was adjudged a good custom, notwithstanding an objection to the prescription in a que eftate, for that a man might have had the borough, and granted it to the corporation, and that the landholder

(a) 3 Keb. 281, 532.

reaped

reaped a benefit by the trade coming to the town by reason of the port; that the prefent cafe was much stronger, the duty being paid by the trader who reaped the benefit of the port more immediately; that the duty in this case arose out of the goods laden to be exported; fo that, by their being laden the duty commenced, and the fhip became chargeable, and that without doubt any other goods of the person who ought to pay the duty might be diftrained as well as thofe for which the duty was payable" (a).

IF a grant be made to the corporation of a town that they shall have the return of writs within the town, and that the sheriff of the county fhall not intromit, they may maintain an action on the cafe against the fheriff, if he enter and ferve process (b).

If an injury be done to one of the members of a corporation, by which the corporation at large are put to any damage, the corporation may have an action on that account. Thus where the corporation are bound to elect a new mayor every year, on a particular day, under the penalty of 10l. and the mayor be imprisoned unjustly, so that they cannot observe the day by which they incur the penalty; or if they are bound to appear annually in the exchequer under a penalty, and they cannot obferve the day on account of the mayor's imprisonment, by which they lofe the penalty, the corporation fhall have an action for that imprisonment (c).

(a) Vinkensterne v. Ebden. 5 Mod. 356. Carth. 357.

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(b) 1 Rol. Rep. 118. This was a grant to the town of Darby by James the first, and it was objected that the King could not at that day, by his charter, grant retorna brevium; but it was held that he could. (c) Per Brian C. J. 21 Ed. 4, 7, 12, 27, 67, Bro. Corpor. 63. Com. Dig. Franchises F.

19.

THE

THE mayor and commonalty of Lincoln brought an action of covenant against the mayor, bailiffs and commonalty of Derby, and counted, that the predeceffors of the defendants, by their deed, had granted to the predeceffors of the plaintiffs, that the mayor and the commonalty of Lincoln fhould be quit of murage, pontage, custom and toll within the town of Derby for all their merchandizes, and averred that the officers of Derby had taken toll and custom wrongfully of fome burgeffes of Lincoln, contrary to the covenant: the action was held to be maintainable, though it was objected that the corporation ought not to have the action, but that the action fhould have been brought by the particular persons whose goods were taken, against the particular perfons who took them (a).

HAD fuch an exemption been claimed by grant from the King, or by prescription, it would seem that the action could not have been maintained by the corporation at large, but must have been brought by the members particularly injured, because, in such an exemption, it is not the corporation in its aggregate capacity that is particularly interested, but the several members in their individual capacities. -It is at least certain, that the individuals injured could have maintained the action, as is evident from the following cafe.

MELLOR brought an action of trespass against Spateman, in which he declared that the defendant, with force and arms, broke the plaintiff's close at Derby, and with his horfes, oxen, cows, hogs, and sheep fed, trampled down and confumed the grafs there growing: the defendant, as to all the trefpafs with his beafts, except two geldings and two mares, pleaded not guilty, and as to the trespass with the faid geldings and mares, he pleaded in bar, that the

(a) 48 E. 3. 17, cited Saund. 344, and Sawyer's Arg. quo, war. 33.

place

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