proceedings might be inftituted on a writ founded originally on the prohibitory writ, yet that writ, whatever it be, which brings the parties into court, must be confidered as the original writ in the cause; it must be founded on damage actually done, and must be sued out by the party actually grieved: it was ftated in the books that the attachment, sued out by the party grieved, is that writ, the foundation on which, according to Fitzherbert, the plaintiffs proceed and count,

To the fourth objection, it was answered, that in this ftage of the proceedings there was no foundation for it. The defendants in error claimed this exemption for all the citizens: and if it had appeared on the trial that any particular clafs was not intitled to it, they must have failed in proving their allegation: but it was claimed in a general unqualified way, extending to all the citizens; and the verdict was coextenfive with their claim.

MR. J. BULLER faid, that on this laft point, he thought the court were bound to give some opinion, and that it could not have escaped the attention of the counsel for the city of London, how very material it was to their cafe. The printed report of this cafe referred to a manuscript of Lord Hale, published by Mr. Hargrave (a), in which it is faid « bona civium must not be intended of every freeman of London; but first he must be a freeman of London; secondly, he must be a freeman and inhabitant of London; for though he be a freeman, yet if he inhabit out of London, he fhall not be exempted from prifage even for the wines imported into London."

The answer which the

council for the defendants in error had given to this objection, amounted to this, that it was a queftion of fact which the jury had determined; but he thought it involved

(a) Hargr. Law Tracts, 128.

in it a question of law as well as of fact. The objection arofe on the record; for it was contended by the counsel for the city, that the word citizens includes all freemen, whether refident or not: if it did, fuch a custom could not exist in point of law (a). If such a custom could be supported, it might be attended with the moft ferious confequences; fince it would be in the power of the city of London, which is one of the oldeft corporations in the kingdom, to fell the privileges of every other corporation (b).

WHERE an action is given to a common informer to fue for a penalty, by the words any person or perfons, a corporation aggregate cannot fue as a common informer (c).

By the common law all ecclefiaftical perfons are bound to keep the houses belonging to their benefices in repair, and if they fuffer them to fall to decay, they or their executors or adminiftrators are liable to be called on by the fucceffors on account of the dilapidations. In order to evade this duty, it had become a frequent practice, previous to the 13 El. c. 10, for incumbents to make "deeds of gift, colourable alienations, and other conveyances of

(a) 3 Bulftr. 1. Thomf. Entr. 302. 30 Ed. 3, f. 16, and Robinfon v. Marshall, C. B. lately.

(b) 4 Term Rep. 130-146.

(c) In C. B. it was held on 7 G. 2, c. 7. a marginal note in Strange 1241.

like effect, of their goods and chattels in their life-time, in order, after their deaths, to defeat their fucceffors of fuch just actions and remedies as otherwise they might have had against their executors or the adminiftrators of their goods." To provide a remedy for this practice, it was enacted by that statute," that if any archbishop, bishop, dean, archdeacon, provoft, treasurer, chaunter, chancellor, prebendary, or any other having any dignity or office in any cathedral or collegiate church; or if any parson, vicar, or other incumbent of any ecclefiaftical living whereunto do belong any house or houses, or other buildings, which by law or custom he is bound to keep and maintain in reparation; fhould from thenceforth make any deed or deeds of gift or alienation, or other like conveyances of his moveable goods or chattels, to the intent and purpose aforefaid; then the fucceffor and fucceffors of him that fhould make fuch deed, &c. fhould and might commence fuit, and have fuch remedy in any court ecclefiaftical of this realm competent. for the matter against him or them to whom fuch deed or deeds, &c. fhould be so made, for the amendment and reparation of so much of the faid dilapidations and decays, or just recompence for the fame, as hath happened by his fact or default, in such manner as he might, fhould or ought to have, if he or they to whom fuch deed, &c. fhould be fo made, were executor or executors of the teftament and laft will of him that made fuch deed, &c. or were administrator or administrators of his goods or chattels" (a).

AND by 14 El.c. 11. all fums of money to be recovered for, or in the name of dilapidations, by fentence, compofition

or

(a) Here is no appearance of this ftatute being temporary: yet it is continued as temporary by the 1 Jac. c. 25, and further by 21 J. c. 28,

and

or otherwife, fhall, within two years after fuch receipt, be truly employed upon the buildings and reparations in refpect whereof fuch money for dilapidations fhall be paid; on pain that every person so receiving and not employing as aforefaid, fhall forfeit double as much as fo fhall be by him received and not employed; which forfeiture shall be to the use of the Queen's majesty, her heirs and fucceffors.

IN former times, confiderable doubt was entertained whether an action on the cafe for dilapidations could be maintained against ecclefiaftical perfons or their perfonal representatives (a).

SIR Simon Degge fays, "fuits for dilapidations are moft properly and naturally to be brought in the ecclefiaftical courts;" and that no prohibition lies: yet he fays, the fucceffor may, if he will, upon the custom of England, have a special action upon the case against the dilapidator, his executors or administrators (b).

In the beginning of the reign of William and Mary (c), an action on the cafe was brought by a parfon for dilapidations against his predeceffor, who had accepted another benefice, and left the houses out of repair, fetting forth that by the custom of the realm he ought to pay to the fucceffor fo much as fhall be fufficient to make the reparations, and

and not further indefinitely (as a great many other ftatutes were) by 16 C. 4. "So that," fays Burn, "upon the whole there may perhaps be some doubt whether this statute is now in force." But I apprehend there can be no doubt about it, as the other branches of the ftatute have been hitherto acted upon as exifting law, vid. ante, page 122, &c.

Wats c. 39.

(a) Per Buller J. 2 Term Rep. 637. (b) Deg. p. 1, c. 8. Ecc. Law, tit. Dilapidations. (c) Jones v. Hill, Eaft.

1 Bac. Abr. 63, cited Burn's

2 W. and M. in C. B. 3 Lev. 268.

that

that the repairs amounted to fo much, which the defendant had not paid; after verdict for the plaintiff, it was moved, in arreft of judgment, that the action could not be maintained, of which opinion Chief Juftice Pollexfen, who tried the cause at Warwick, had been, and ftill continued to be, on the ground that the remedy was only in the ecclefiaftical court: in fupport of the action the authority of Degge was cited, and several inftances of fuch an action being brought; but on fearching the rolls, no judgment appeared to have been given in some of them, but only verdict and several continuances entered: one cafe, however, was found (a), in which judgement had been given for the plaintiff on demurrer. Notwithstanding this, the court inclined to Pollexfen's opinion: but the cafe being in the paper to be argued again, and Pollexfen and Ventris dying in the mean time, it was argued a fecond time before Powell and Rookeby, who gave judgment for the plaintiff.

In the case of Dr. Sand (b), on an application for a prohibition to the spiritual court to stay proceedings there, in a fuit for dilapidations against a prebendary of Wells, it appeared that there were eight prebends, and eight prebendal houses belonging to that church, but that no house in certain was allotted to each prebend, the bishop having the privilege of affigning to each what house he chose. It was objected that the house in question was not part of the prebend; but the court held that when the bishop had affigned a house, it became part of the prebend, and that the prebendary was liable to a fuit for dilapidations, and therefore refused the prohibition.

EVER fince it was decided that an action on the cafe for dilapidations will lie in the cafe of a parfon, it has been

(a) Day v. Hollington, 3 Jac. 2, C. B.

(b) Skin. 121.

ufual,