reaped a benefit by the trade coming to the town by reafon of the port; that the present case was much stronger, the duty being paid by the trader who reaped the benefit of the port more immediately; that the duty in this cafe arofe. 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 perfon 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 fheriff of the county fhall not intromit, they may maintain an action on the cafe againft the fheriff, if he enter and serve procefs (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 pe-, nalty 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 lose the penalty, the corporation fhall have an action for that imprisonment (c). (a) Vinkensterne v. Ebden. 1 Ld. Raym. 384. I Salk. 248. 5 Mod. 356. Carth. 357. (b) 1 Rol. Rep. 118. This was a grant to the town of Darby by James the firft, 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 com-monalty of Derby, and counted, that the predecessors 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, cuftom 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 whofe goods were taken, against the particular persons who took them (a). HAD fuch an exemption been claimed by grant from the King, or by prescription, it would feem 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 feveral 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 trefpafs 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 fheep 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 place where the trespass was alledged to have been committed, was twenty acres of land in Derby aforefaid, and from time immemorial had been parcel of a common field called Littlefield, and that the borough of Derby was an ancient borough, and that the defendant at the time when, &c. was a burgess of the said borough: he further said, that the burgeffes of the borough from time immemorial till the 11th day of July, in the fourteenth year of Charles the first, were a body politic and corporate by the name of bailiffs and burgeffes of the borough of Derby, and that on that day the King by his letters patent, under the great feal, changed the name of the corporation to that of mayor and burgeffes. He then laid a prescription for common in the corporation in fuch terms as thefe, that the bailiffs and burgeffes from time immemorial, till the faid 11th of July, and the mayor and burgefs ever fince had for themselves and for each burgefs of the faid borough, common for all their commonable beafts in the faid field called Littlefield, of which the place where the supposed trespass was committed was parcel, in the manner which he then particularly defcribed. To this plea the plaintiff demurred. SAUNDERS, who was counsel for the defendant, contended "that a corporation might prefcribe for the benefit of their particular members, as well as a natural perfon might prescribe for common or other profit or easement for himself and his tenants; that a corporation could take a grant for the benefit of the particular members, appeared by the cafe of Lincoln and Derby before mentioned; and he argued, that if a corporation could take a grant for the benefit of their particular members, they might prescribe to have the fame thing to the fame intent, for that whatever might commence by grant might be claimed by prefcription;" which the court, fays the report, did not much deny; deny; and Keeling C. J. in particular, faid the plea would have been good had it stated that the cattle were levant and couchant within the vill, but that for want of this only, it was bad, because there could be no fuch thing as common in grofs without number, and judgment was for that reason given for the plaintiff. The defendant's council advised him to bring a writ of error; but as the action was commenced by original, and confequently a writ of error lay only to parliament, and not in the exchequer chamber, nothing further was done (a). THE reafoning of Saunders would, perhaps, have been more correct had it been expreffed thus, "that as a corporation can take a grant for the benefit of the particular members, of which each particular member might avail himself in pleading, fo each particular member might prefcribe in right of the corporation, for a thing which they claimed by prescription for the benefit of the particular members;" at least the reasoning fo expreffed would have been more applicable to the cafe in queftion, because there, the prescription was not by the corporation for the benefit of the particular members, but by a particular member in right of the corporation. THIS is indeed the cafe of prescription by a particular member in a plea, but I conceive that had the plaintiff in the present cafe, inftead of bringing an action of trefpafs against the defendant, diftrained the defendant's cattle, the defendant might have enforced his title to the common in the character of plaintiff. THE queftion whether the corporation at large can maintain an action for the infringement of a privilege claimed by an individual, as member of the corporation, in confequence of a grant from the King to the corporation for the benefit of its members, was agitated in the late cafe of the corporation of London against the corporation of Lyrn (b). (a) 1 Saund. 343. (b) H. Blackstone's Reports, C. B. 206. THIS was an action on a writ de effendo quietum de theolonio, brought by the mayor, commonalty and citizens of the city of London against the mayor and burgeffes of the borough of Lenne Regis, commonly called King's Lynn, in the county of Norfolk, to establish a claim of the freemen of the city of London to be exempt from the payment of all tolls and port duties throughout England, except the prifage of wine, in whatever place they refide, and though they have obtained their freedom by purchase (a). THE (a) As this was a very unusual proceeding, we shall give the writ, the declaration and the pleas, at full length-The writ was thus: "George the third, &c. To the mayor and burgeffes of the borough of Lenne Regis, commonly called King's Lynn, in the county of Norfolk, greeting. Whereas our city of London is, and, from time whereof the memory of man is not to the contrary, hath been an ancient city; and the citizens of the faid city, during all the time aforesaid, have been a body corporate and politic in deed, fact and name, by divers names of incorporation; and for divers, viz. fifty years last past, have been a body politic and corporate, by the name of the mayor, and commonalty, and citizens of the city of London: and whereas also, amongst other the liberties, free cuftoms and privileges, from time immemorial ufed and enjoyed by the faid citizens, they the faid citizens, from time, &c. have been used and accustomed to have and enjoy a certain ancient liberty and privilege; that is to fay, that the citizens of the faid city, and all their goods, fhould be quit and free of and from all toll and paffage, and laftage*, and other customs, throughout the whole kingdom of England, and the ports of the feas (except only our due and ancient custom and prifes of wines); all which faid liberties and privileges have been confirmed by divers charters of our progenitors, and also by divers acts of parliament: nevertheless you require the said citizens, as it is faid, to yield toll, paffage, laftage, and other customs to you, of their goods and things within the faid borough and the port thereof, and do many ways unjustly difquiet them on that occafion, to the * Laftage was a duty of one penny for every quarter of corn, i. e. ten-pence for every laft, exported from Lynn. |