place where the trefpafs was alledged to have been com mitted, 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 burgefs of the faid borough: he further faid, 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 such terms as these, that the bailiffs and burgeffes from time immemorial, till the said 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 beasts in the said field called Littlefield, of which the place where the fuppofed trefpafs was committed was parcel, in the manner which he then particu larly defcribed. To this plea the plaintiff demurred.

SAUNDERS, who was counfel for the defendant, contended "that a corporation might prescribe 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 levànt and couchant within the vill, but that for want of this only, it was bad, because there could be no such 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 prescribe 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 case in question, 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 prefent cafe, inftead of bringing an action of trespass against the defendant, diftrained the defendant's cattle, the defendant might have enforced his title to the com'mon 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 Lynn (b). (a) I 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 aforefaid, 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 alfo, amongst other the liberties, free customs and privileges, from time immemorial used 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 passage, and lastage*, 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 alfo by divers acts of parliament: nevertheless you require the said citi

ens, 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.

THE writ was an original iffuing out of chancery, as all writs of that nature are, without requiring a re

turn

the great damage of the said citizens, as we have received information from their complaints: We, willing that no injury should be done to the faid citizens, command you, that if it be so, then, defifting for the time to come from bringing fuch difquietudes on the faid citizens, you permit them to be quit of yielding fuch toll, paffage, lastage, and other customs as aforefaid, to you, of their goods and things in the faid borough and the port thereof. Witness ourself at Westminster, the 19th day of July, in the 27th year of our reign."

THE alias was in the fame terms as the original writ, except that after the words, "We willing, &c. command you," were added, " as formerly we commanded you" &c. "or fignify to us the cause, wherefore you would not, or could not execute our command, formerly directed to you therein. Witness ourself at Westminster, the 23d day of July, in the 27th year of our reign."

THE pluries was alfo in the fame terms as the original, except that after the words "command you," were added "as we have often commanded you," &c. "or fignify to us the caufe, wherefore you would not, or could not execute our command, formerly directed to you therein, and you flighting our faid commands, as we are informed, have neglected hitherto to permit the faid citizens to be quit of yielding fuch toll, paffage, laftage, and other customs as aforefaid, to you of their goods and things in the said borough, and the port thereof, according to the liberty, free custom and privilege aforefaid; or leastwife to fignify to us the cause wherefore you would not or could not do it; in manifest contempt of us and of our faid commands, and to the great damage and grievance of them the said citizens; to our great furprize and displeasure: we again command you, strictly enjoining, that you permit the faid citizens to be quit of yielding toll, paffage, laftage, and other customs to you, of their goods and things, within the faid borough and the port thereof, according to the tenor of our faid commands, formerly directed to you therein, or that you be before our juftices at Weftminster, on the morrow of All Souls, to fhew wherefore you have contemned to execute our commands fo often directed to you therein; and have you then there this writ. Witness ourself at Weftminster, the 26th day of July, in the 27th year of our reign.

turn either there or into any other court: after reciting the claim of the citizens, it alleged that the mayor and burgeffes of Lynn, to whom it was directed, nevertheless, required them to yield toll and the other duties, and many

ways

THE declaration was thus:- -Norfolk, to wit. The mayor and burgeffes of Lenne Regis, commonly called King's Lynn, in the county of Norfolk, were fummoned to answer the mayor, commonalty and citizens of the city of London, of a plea wherefore they require the citizens of the faid city to yield toll, paffage, and laftage, of their goods and things, within the said borough and the port thereof; and thereupon the faid mayor, commonalty and citizens of the faid city, by Rowland Lickbarrow, their attorney, complain, for that whereas the 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 said city, during all the time aforefaid, have been a body politic in deed, fact and name, by divers names of incorporation; and for divers, to wit, fifty years last past, have been a body politic and corporate, by the name of the mayor, commonalty, and citizens of the city of London. And whereas also, amongst others, the liberties, free customs, and privileges, from time immemorial used, and enjoyed by the faid citizens, they the faid citizens, from time whereof the memory of man is not to the contrary, have been ufed and been accustomed to have, and enjoy, and fill of right ought 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, should be quit, and free of and from all toll, passage and laftage, and other customs throughout the whole kingdom of England, and the ports of the Lord the King, except only his due and ancient cuflom, and prifes of wines; all which faid liberties and privileges have been confirmed by divers acts of parliament: and whereas our faid Lord the King did, by his certain writ, under his great feal of Engand, command the faid mayor and burgeffes, that they should permit the said citizens, to be quit of yielding fuch toll, paffage, laftage, and other cuftoms as aforefaid, of their goods and things in the faid borough, and the port thereof; or on a certain day now past, fignify to him caufe, wherefore they had not executed his commands to them for the faid purpose, before then directed: yet the faid mayor and burgeffes, not regarding the faid writ of our said Lord the King, have not fignified to him as by the faid writ was com

manded;