ufual, in the declaration, to state that all prebendaries, rectors, vicars, &c. are bound by law to repair (a): notwithftanding this, however, it was very lately contended (b) that an action by a prebendary against his predeceffor for dilapidations could not be maintained; for that no cafe could be found in which fuch an action had been brought; that the cafes cited to prove the pofition, were not adequate to the purpose for which they were produced; that they were actions against rectors or vicars, and that the bare recital in the declarations that prebendaries were bound to repair was not fufficient. The court (c), however, held that, in point of law, there was no diftinction between a prebendary and any other ecclefiaftical perfon, as to his liability in this fort of action; that the form of the declarations was very material in a cafe where no direct determinations could be found one way or the other; that precedents which had prevailed for a century paft, were strong to fhew what the law is; and that prebendaries, as well as other ecclefiaftical perfons, were under an obligation, both in point of morality and of policy, to keep their houses in repair; that the fucceffors fhould not fuffer by the neglect of their predeceffors; and that therefore the late incumbent, or his executors, muft make good to the fucceffor any damage which he might thus fuftain; and there was no diftinction whether the action was brought against the executor of the former incumbent, or against the former incumbent himself, who had other preferment. With regard to the cafe of Dr. Sand, though it was only a fuit in the ecclefiaftical court, yet it was a ftrong authority on the point; for there was no difference whether the proceedings

(a) Vid. Lutw. 116, 117. 2 Term Rep. 636. (b) Radcliffe v. D'Oyly. 2 Term Rep. 630. (c) Afhhurst, Buller and Grofe, J.

for

for dilapidations were in the common law, or in the fpiritual courts; though the remedy in the former was more effectual.

It is laid down as a general rule, that an action of trefpass cannot be maintained against a corporation aggregate, and the technical reason given, is that capias and exigent do not lie against a corporation, which are the proper process in an action of trefpafs (a). But if any of the members or fervants of the corporation commit a trespass in afferting Cooke the right of the corporation, the action must be brought against them individually, and they may justify in the right of the corporation. Notwithstanding this, there are several cafes, in the year books, of actions of trefpafs brought against a mayor and commonalty, in which, though many objections appear to have been taken on other points, none appears to have been taken to the action itself (b). Among others, an action of trespass is reported to have been brought against the mayor and commonalty of York, to which, inftead of demurring, they pleaded, that all the inhabitants had common for a certain time in the place where the trefpass was alleged to have been committed, and that they put in their beafts, to wit, two of them an ox, and other two a horse, &c. and this was ruled to be no plea, because the action being brought against the corporation, they could not justify for particular perfons, for the trefpafs being affigned in the body politic, it could not be justified in the right of an individual (c).

(a) 22 Aff. pl. 67. Bro. Corpor. 43.

(b) Vid. 38 Ed. 3, 18. 8 H. 6, 1. 9 H. 6, 36. 20 H. 6, 9. 4 H. 7, 13. Bro. Corp. 48. (c) 4 H. 7, 13. Bro, Cor. 48.

ANOTHER

ANOTHER of these actions was an action of trefpafs against a mayor and commonalty, and a private person, a member of the corporation, jointly; in which the plaintiff declared on a right of exemption from toll, and alleged that the mayor and bailiffs and the individual had distrained certain beasts of the plaintiff for the toll: much was said on the impropriety of joining the individual in an action against the corporation; but no queftion was made whether fuch an action could be maintained or not againft the corporation simply (a).

THE archbishop of York brought an action of trefpafs against the mayor and commonalty of the town of Kingfton upon Hull, and a private person, in which he alleged that he and all his predefeffors, from time immemorial, had used and enjoyed the franchise of having all deodans and other profits in the water of Hull, in Kingston upon Hull, and that the defendants had disturbed him in taking the faid profits: the private person pleaded in abatement of the writ, that he was named with the mayor and commonalty; in fupport of which it was contended that there ought to have been several actions, because the process was several, being capias and exigent against the individual, and distringas against the mayor and commonalty. The mayor and commonalty alleged that they held the town at ferm of the King, rendering 40l. rent by the year, by a charter which they produced, and faid that the water was parcel of the town, and that they had held it immemorially as parcel under their charter, and then prayed aid of the King, which was granted but it was not objected that fuch an action would not lie against a corporation (b).

THE prior of St. Martin's brought a writ of trespass on the cafe against the mayor and burgeffes of New

(a) 8 H. 6, 1. 9 H. 6, 36.

(b) 45 Ed. 3, 23.

Windfor,

Windfor for difturbing him in holding a leet which he claimed to be entitled to hold, within the town of Windfor, and for other wrongs there done to him: as to all the trespass except the difturbance, the mayor and burgeffes pleaded not guilty, and as to the difturbance they justified under a grant of Edward the firft; but no objection was taken to the form of the action (a).

NOTWITHSTANDING thefe examples, however, it may well be doubted whether, at this day, fuch an action could be maintained against a corporation aggregate; the action fuppofes a personal act of which the corporation is incapable in its collective capacity; the act therefore which is the foundation of the action must be done by some individual in order to affert the right of the corporation, and the action being brought against that individual will answer the purpose of bringing the right to a judicial determination.

IT is accordingly decided that a replevin cannot be maintained against a corporation aggregate, because it is founded on a diftrefs, which the corporation cannot take but by its bailiff (b).

IF a corporation has been used for time immemorial to repair a creek, that creates an obligation to keep it in rẻpair, and an action may be maintained against the corporation for not repairing it, by any one who has fuftained any damage from its not being in a state of repair (c).

IT feems likewise, that in such a cafe as this, or where a corporation is bound to keep a bridge or a highway in repair, an indictment will lie againft it for not repairing. It is, indeed, reported to have been faid by Lord Chief

(a) 18 H. 6, 1r.

(b) Brownl. 175. Bac. Abr. tit. Corporations, E. 2.

(c) Vid. the mayor of Lynne v. Turner, Cowp. 86.

Juftice Holt (a), that "a corporation is not indictable, but the particular members of it are;" but I apprehend that this can apply only to the case of a crime or misdemeanor, and that an indictment may lie against a corporation, in the cafes mentioned, as well as against a county or a parish (b).

SECTION II.

Of the Mode prefcribed by the Law, in which Corporations must act, and which must be observed by others in acting against them.

THE fubjects which fall under this head are these. I. The law refpecting the name of a corporaton. 2. What acts it must do by deed, and what it may do without deed. 3. Its common feal. 4. When it must act by attorney. 5. What process must be used against it; and 6. How it muft plead and be impleaded.

1. Of the Name of a Corporation.

EVERY corporation must have a name by which it may be known and diftinguished; by which it must take and

(a) 12 Mod. 559.

(b) Vid. in Dogherty's Crown Circuit Affiftant, 398, a precedent of an indictment against the mayor and burgeffes of the city of Gloucester for not reparing the Gaol.

grant,