intitled to a vote, may maintain an action against the prefiding officer for refusing his vote (a).

HAVING Confidered the capacity of corporations with respect to their property and privileges, it follows naturally that we should fay fomething with refpect to their capacity of fuing and being fued. This part of the subject refolves itself into two questions. 1. What actions they can bring? and, 2. What actions may be brought against them?-To both which one general answer may be given, that they may maintain all fuch actions as are neceffary to affert their rights when invaded, or to give them a recompence for any injury that can be done to them; and that all fuch actions may be maintained against them, as are neceffary to enforce the claims of others in apposition to them.

ALL corporations aggregate, having the fee fimple of their poffeffions, may maintain a writ of right, as any tenant in fee simple may (b), and fo may those fole corporations who have the fee fimple abfolute in their poffeffions; a bishop for the poffeffions of his bishopric; a dean or master of an hofpital, for those poffeffions which they hold diftinct from the chapter or the hofpital refpectively; and fo might an abbot or prior for the poffeffions of their monaftries. But those fole corporations which have not the fee simple in them, as a parson, vicar, prebendary, and in ancient times a chauntry prieft, cannot maintain a writ of right, but the highest writ which they can have is a

(a) Vid. Afhby, v. White, et al. 2 Ld. Raym. 938, 951. Salk. 19. (b) Vid. case of All Souls college, Cro. El. 232. Co. Lit. 341 b. F. N. B. 5. C.

juris

juris utrum (a), which is a writ in the form of an affize, but determines both the right and the poffeffion (b). It lay, and ftill lies, though obfolete, where lands or tenements were alienated by the predeceffor, or where a recovery · had been had against the predecessor by default or by furrender, or where the predeceffor had not pleaded or prayed in aid of the patron and ordinary. But if he had prayed in aid of the patron and ordinary, and they had joined in aid, and rendered the land or confessed the action, then the fucceffor could not have this writ against the recoveree.

Ir a parfon had been diffeifed of lands and tenements, parcel of his rectory, and died; or if, after the death of a parfon, a man had intruded into fuch lands and tenements, the fucceffor fhould have had this writ (c).

As these corporations which had not the fee fimple abfolutely in them, could not have a writ of right properly fo called, fo neither could they have a writ of customs and fervices, ne injufte vexes, rationabilibus divifis, quo jure, or fuch other writs as were grounded on the mere right (d).

BUT they might have a writ of waste, a writ of entry ad communem legem, a writ de confimili cafu, ad terminum qui præteriit, or a quod permittat, a writ contra formam col

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(a) Rex vice comiti falutem. Si A. perfona ecclefiæ de E. fecerit te fecurum, &c. tunc fummoneas, &c. 12 liberos, &c. de vicineto de E. quod fint coram juftitiariis noftris ad primam affifam, &c. vel coram juftitiariis noftris tali die, parati facramento recognofcere, utrum meffuagium cum pertinentiis in E. fit libera eleemofyna pertinens ad ecclefiam ipfius A. de E. an laicum feodum S. et interim meffuagium illud videant et nomina eorum imbreviari facias. Et fummoneas per bonus fummonitores, prædictum S. qui meffuagium illud tenet, quod tunc fit ibi ad audiendum illam recognitionem. Et habeas, &c. fumm', &c. et hoc breve. Tefte, &c. Reg. Brev. Or. 32 b. (b) Vid. Reeves's History of English Law, vol. 1. 366, 368. (c) F. N. B. 49. A. (d) F. N. B. 49. L. Co. Lit. 341. b. lationis,

lationis, or contra formam feoffamenti, a writ of mesne, and fuch other poffeffory writs as were applicable to their cafe (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 diffeifin, because, though the dean diffeifed was dead, the chapter remained, which was compofed of perfons capable.-But it was otherwife of an abbot and convent, because, if the abbot died, there remained no perfons 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 trefpafs be committed on the lands or poffeffions of a corporation, they may have an action of trespass as well as a private perfon (d).

So, they may maintain an action of trefpafs 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 (f), 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.

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I Ed. 5, 5. 7 H. 7, 9.

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

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 cuftom-house, fhould pay fo much for fhewing them :" after verdict, it was alledged in arreft 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, a special 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 said 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 used, 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 fhew that a general indebitatus affumpfit will lie for fuch duties.

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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 Justice 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 mafter of the ship was the exporter, and fatisfied and difcharged 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 seek the merchant; that this was the constant 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 whose estate 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 purchafe 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