nam was, against whom as the defendant might have pleaded the ftatute, fo might he alfo do against the company, who ftood in Surnam's place; and he compared it to the case of an affignee under a commiffion of bankruptcy, against whom, though he claims under the ftatutes concerning bankrupts, and also by virtue of the affignment which is under the great feal, the statute of limitations might be pleaded, as well as against the bankrupt himself (a). So, a corporation may have the benefit of the ftatute of limitations as well as a private perfon, as their witnesses may die, or their vouchers may be lost (b). In equity, corporations aggregate anfwer under their common feal, and if they refuse to anfwer, process issues against them as before mentioned (c): but if the majority of the members be ready to put in their answer, and the head who has the cuftody of the common feal refuse to affix it, the Court of Equity will ftay the process against the corporation, till an application can be made to the Court of King's Bench for a mandamus to compel him, which that court will grant: this was firft done about thirteen years ago in the cafe of Doctor Windham, warden of Wadham College; a bill was filed against the warden, fellows, and scholars of that college, to compel the execution of a leafe according to an agreement, alleged to have been made by them; the fubwarden, dean, and principal officers were ready to put in their answer, infisting that the agreement was not made by a majority of the college as it ought to have been; the warden difapproved of this anfwer, and therefore refused to affix the college feal to it: the Chancellor obferving that the corporation > (a) South Sea Company v. Wymondfell. 3 P. W. 143. (b) Wych v. Eaft India Company. 3 P. W. 310. (c) Vid. ante, p. 271 et seq. at at large were not in fault, but had obeyed the process of the court as far as they could, directed an application to be made to the Court of King's Bench for a mandamus to compel the warden to affix the feal; on the application being made, Lord Mansfield faid, that though he believed this was the first inftance of fuch an application, yet it was not new in principle: he obferved that the warden feemed to have mifconceived the confequence of his affixing the seal to the answer of the fellows, and to think that it would make his corporate answer inconfiftent with his private feparate answer, for that he was of opinion the plaintiff's fuit was juft, and that the agreement ought to be executed: but his lordship faid, his putting the college feal to the anfwer of the corporation, did not contradict his private separate anfwer, and that therefore the mandamus ought to iffue (a). As a corporation answer under their common feal, and not upon oath, they will of courfe difcover nothing to their own prejudice: when, therefore, a plaintiff apprehends he cannot have the full effect of his fuit by making the corporation alone defendants to his bill, he ufually joins the clerk or treasurer, or some of the principal members of the corporation in their natural capacity. This practice seems to have been introduced in confequence of an anonymous cafe late in the reign of Charles the fecond; where a bill having been filed against a corporate company to obtain the discovery of writings, and they refufing to answer fatisfactorily, it was exprefsly ordered, that the clerk, and fuch principal members as the plaintiff should think fit, fhould answer on oath, and that a mafter should fettle the oath (b). (a) Cowp. 377. (b) Anonymous, 34 and 35 Car. 1682. 1 Vern. 117. FROM FROM this time, it is probable, that the practice of joining fome individual with the corporation, as a defendant in his individual capacity, became common; and in the cafe of Wych and Meal (a), the propriety of it was recognised by Lord Talbot. THIS was a bill brought by the plaintiff against the East India company, and one of the officers of the company, in order to discover fome entries and orders in their books.The officer demurred, fhewing for caufe, that it was not fo much as pretended by the bill that he had any intereft in the matter in queftion; that his anfwer, if it were to be put in, could not be read against the company, as the answer of one defendant could not be made use of against the other; that the plaintiff, if he pleased, might examine the defendant as a witness; that on the fame principle on which he was made defendant here, the plaintiff might make the fervant of any private perfon a defendant; and that it was plain the plaintiff could have no decree against the defendant, the officer of the company. THE Lord Chancellor obferved, this was a thing of confequence, which he did not remember to have been judicially determined; but fo far was plain, that the plaintiff was intitled to a difcovery of the matters charged in the bill; the cafe where a private perfon was detendant, was different from that where a company were defendants; the latter could answer no otherwife than under their common feal; and though they answered ever fo falfely, there was no remedy against them for perjury: it had been an usual thing for a plaintiff, in order to have a difcovery, to make the secretary, book-keeper, or any other officers of the company, defendants, who had not demurred, but answered; whereas, if this demurrer fhould be allowed, (a) 1734. 3 P. W. 311. the the officers of companies were never likely to answer again; and though the plaintiff were intitled to a discovery, he would never be able to obtain one; and confequently. there would be a failure of justice.-Befide this, although the answer of the defendant, the officer, could not be read against the company, yet it might be of use to direct the plaintiff how to draw and pen his interrogatories, towards obtaining a better discovery; and fince no inftance was produced, where such a demurrer had been allowed, and it might be very mischievous and injurious to the fubjects, by allowing it, to deprive them of that discovery, to which, in common justice, they were intitled; and as on the other hand no inconvenience could infue from obliging fuch officers of a company to answer; therefore he over-ruled the demurrer. WHEN a perfon has reason to suspect he has fuftained an injury by perfons acting under the authority of a corporation, but cannot ascertain how far they are concerned, he may file a bill against them and their fecretary, or other officer, for a discovery, before he bring an action at law, fuggefting that he intends to bring one, but cannot do it without the discovery prayed: because, as the fuit against a corporation is by original, the discovery may be neceffary before he can fue out his writ (a). IF a discovery of any of the matters called for, would be prejudicial to the corporation, and be not neceffary to the plaintiff's cafe, the officer needs not difcover those parts (b). WHERE an action is brought by or against the mayor and commonalty of a city, the iffue must be tried by a Brown. Ch. Cas. 471. (a) Vid. Moodamay v. Morton. jury jury of men who are ftrangers to the corporation, because the members of the corporation are interested in the ́event (a). On the fame principle of being interefted in the event, it feems, that a cuftom in a corporation, on which they found a claim, cannot be proved by a member of the corporation (b); but one who has been a member of the corporation, and disfranchifed, may be a witnefs to prove fuch a cuftom; though, it is faid, a man cannot furrender his franchife by confent, in order to be enabled to be a witness (c). In an action of affumpfit, brought by the mayor and commonalty of London, for 51. due to them for several tons of wine, brought from beyond the feas to the port of London, at 4d. per ton, which was the duty of waterbailage; at a trial at bar, feveral freemen of London were offered as witneffes for the plaintiffs; the counsel for the defendant objected to them as being parties, and interested in the event, the commonalty of London comprehending all the freemen: it was answered that their interest ought not to be confidered, it being fo trivial and remote; that a fmall legatee had been fworn to prove a will; that in an indictment against the county for not repairing a bridge, one of the county might be a witnefs; and this, Dolben, J. faid he had known in the cafe of Peterborough bridge; it was likewise observed, that in an action against the hundred on the ftatute of Winton, the plaintiff is a witness from the neceffity of the cafe: to this it was replied, that the present was not a cafe of neceffity, for that the plaintiffs, though perhaps with difficulty, might have other witnesses befide freemen; and that the cafe of the ftatute of Winton (a) 10 Aff. pl. 13. Bro. Corp. 4. Trial, 67. (b) 3 Keb. 12. |