THE fummons to appear must be served on the mayor or other chief officer of the corporation, and that is fufficient fervice: a decree having been obtained in chancery against the East India Company for the payment of a fum of money, the plaintiff served the writ of execution on the governor of the company only; to which an objection was taken, on the ground that the governor had no power over the company's cafh, and could not pay the money decreed, and that, therefore, the fervice ought to have been on the committee; but the objection was over-ruled, because the committee might not meet, or if they did, might not admit the officer into the room to serve them, on which there could be no fervice (a). The fame principle applies to the fervice of an original writ.

IF on fervice of the writ, the corporation do not appear according to the exigency of it, the procefs to compel appearance is not against the individual members, but by diftringas against the corporate property; and an attachment will not lie against them in their corporate capacity (b). If they have neither lands nor goods there is no way to make them appear, either in a court of law or of equity, for it is a rule, that for a public concern the fheriff cannot diftrain any individual member of the corporation (c). But in an extraordinary cafe, where the corthere acor poration has no property, and will not appear, and where fromate bus confequently a court of equity can give no relief, the ly plaintiff may appeal to the Houfe of Lords, who will make a fpecific order for relief.

(a) Prec. Chanc. 131. 1 Ch. Cafes 206.

(b) 2 Keb. 1 Ray. 152. 1 H. Bl. Rep. C. B. 209.

(c) Thursfield v. Jones, Skin. 27. 1 Ventr. 351. Styles 367 contra,

all cited Cowp. 85,

A BILL,

A BILL, filed in chancery againft the Hamborough company, by the name of the Governor, Affiftants, and Fellowship of Merchant Adventurers of England, and several particular members of the company by name in their natural capacity, charged that the company were incorporated, as appeared by letters patent, and had power to make bye laws, and to affefs rates upon cloths, which was the article in which they dealt, and by the poll on every member, to defray the neceffary charge of the company; that the company had imposed rates accordingly, and had raised 8000l. per annum towards the fupport of the common charge; that they had in confequence of that obtained great credit, and borrowed large fums of money by deed under their common feal, and that the plaintiff in particular had on that fecurity, many years ago, lent them 2000l. The bill then fet forth feveral advantages they had in trade by being members of this corporation, which others wanted it then charged, that the company having no common stock, the plaintiff had no remedy at law for his debt; but charged that their ufage had been to make rates and levy them on the members and their goods, to bear the charges of the company and pay their debts, and complained that they now refused to exercise that power, and particularly complained against several of the members by name who refused to meet and lay taxes, and that they pretended want of power by their charter to impofe fuch taxes, whereas they had formerly exercifed it, and had in confequence of it gained credit; on which circumstances the plaintiff prayed to be relieved. The company were served with procefs, but would not appear, as they had nothing by which they might be diftrained; but the particular members who were ferved in their natural capacity appeared, and demurred, for that they were not in that capacity

T

capacity liable to the plaintiff's demands. On the 10th of May 1666, on argument the demurrer was allowed, and the bill difmiffed, and that difmiffal enrolled; on which a petition of appeal was preferred to the Lords in Parliament, admitting that in the ordinary course of proceedings in chancery, that court could not help the plaintiff; but alleging, that in cafes of this nature, the House of Lords had given special directions to the chancery to relieve, which had been accordingly done, and producing two precedents against companies in London for that purpose: to this petition the defendants particularly named put in an anfwer, plea, and demurrer, and the company though several times fummoned did not appear. After argument at the bar of the House of Lords, January 20th, 1670, this order was made

THAT the difmiffion for fo much as concerned the company should be reverfed, and that the Lord Chancellor, or the Lord Keeper of the Great Seal of England for the time being, fhould retain the bill: that the Court of Chancery fhould iffue forth the ufual process of that court, and if there fhould be caufe, process of diftringas against the corporation, provided that the process should be ferved one month before the return of it: and if upon return of the procefs the corporation fhould not file an appearance, or should appear and not anfwer, the bill should be taken pro confeffo, and a decree should thereupon pafs: but in cafe the corporation should appear and answer within the time prefcribed them, the Court of Chancery should proceed to examine what the plaintiff's just debt was, and should decree that the company should pay fo much money as the fame appear to amount to, with reasonable damages: and in case the corporation should not pay the fum decreed within ninety days after the service of the decree on their

fhould

governor,

governor, deputy governor, treasurer, clerk or fecretary for the time being, then, it was further ordered that the Lord Chancellor or Lord Keeper for the time being, fhould order and decree that the governor or deputy, and the twenty-four affiftants of the company, or fo many of them as by the tenor of their charter conftituted a quorum, for making levies on the trade or members of the company for the use of the company, should within fuch time as by the Lord Chancellor or Keeper fhould be thought fit, make fuch levy on every member of the company who was to be contributory to the public charge as should be fufficient to fatisfy the fum to be decreed to the plaintiff, and should collect and levy it, and pay it over to the plaintiff as the court should direct; that the order for fuch levy should be put in writing and figned by the governor, deputy governor and affiftants of the company for the time being; and if so many of them as by the conftitution of the charter made a quorum should not make fuch affeffment, and return fuch levy, the Lord Chancellor or Lord Keeper might iffue process of contempt against them, as was usual against persons in their natural capacities: and if, by the time fo to be limited by the Court of Chancery, the money fo to be affeffed fhould not be paid, then, and from thenceforth, every perfon of the company mentioned in the order of levy fhould be made liable to pay his quota or proportion affeffed and the Lord Chancellor or Lord Keeper was directed to decree that such process should iffue against any such member so refufing or delaying to pay his quota or proportion, as is usual against persons charged by the decree of the court for any duty in their feveral capacities: and if the total fo returned and filed with the register should not amount to fo much as fhould be fufficient to fatisfy the fum decreed, due refpect being had to fuch perfon as should

make it appear that he was overcharged or ought not to be charged at all, then the Lord Chancellor or Lord Keeper for the time being might, from time to time, order that a new levy should be made and returned into the register's office of the Court of Chancery, of fuch fum as fhould be fufficient by way of fupplement for that purpose, to the payment of which, every individual should be bound in the manner before described.

On the 6th of March the Lord Keeper, on a motion grounded on this order, ordered that the difmiffion should stand reversed and the bill revived, and that fuch proceedings fhould be had as were prescribed by the order.

THE treasurer and fecretary, were accordingly ferved with a diftringas against the company, and copies of the order of the Lords: the fheriff returned nulla bona; and no appearance was made. On the 5th of July the cause was ordered to be put into the paper to be heard, and notice to be given to the treasurer, fecretary and clerk; nobody appearing for the defendants, the court decreed the bill to be taken pro confeffo, and the defendants to pay the plaintiff's debt according to the order of the lords in parliament (a).

THE proceedings on the diftringas in the courts of common law against a corporation are the fame as in other cafes (b) in equity it is used to compel an appearance, to compel an answer, and to compel performance of a decree: when it is to compel appearance or an anfwer, and the defendants ftand out in contempt, there iffues an alias, and

(a) 1 Cafes in Ch. 204. I This cafe is cited 2 Vern. 396, in these words: "Note, in the cafe between Dr. Salmon and the Hamborough company, the members in their private perfons were made liable, the company having no goods."

(b) For which vid. Tidd's Practice 18,-22.