if they ftill ftand out, a pluries; if on the return of the pluries they do not enter an appearance, or put in their answer, as the cafe may be, the next step is to apply for a fequeftration (a). When a diftringas iffues against them in confequence of their disobedience to a decree, a fequeftration may be had against them after the return of the first writ (b). And when the fequeftration is once awarded, they cannot have it discharged on entering their appearance with the register on the diftringas, and submitting to answer interrogatories; because that permiffion granted in the case of common perfons is in favour of liberty, which a corporation cannot lofe: but if they can fhew any irregularity in the proceedings, that may be cause to discharge the order (c). IT has been before observed, that a corporation aggregate cannot be fummoned into the ecclefiaftical courts (d). It seems, however, that they may be made amenable to these courts; for it is faid, that "the Court Chriftian cites the members of corporations by their proper names, with the addition of the names of their corporate capacity, though it proceeds against them in the latter character, for that that court has no other way of citing them than this; that it cannot cite the body politic, and that therefore it has no mode of proceeding against them but this: that this does not resemble a diftringas at common law, by which the lands or goods of the body politic may be taken, and where, if they have neither lands nor goods, there is no way to make them appear; but that in the Court Chriftian they are cited by their proper names, though in their politic (a) Vid. 1 Harrison's Chanc. Pract. by Williams, 265. I (b) Vid. Harvey v. the East India Company. 2 Vern. 395. Prec. Chanc. 129. (c) Vid, the laft cited authorities. (d) Page 71. capacity; and if they stand out they muft lie by the heels in their natural capacity" (a). 6. How a Corporation must plead and be impleaded. If a person who is a fole corporation fue in his corporate capacity, he must fue in his corporate name. Therefore, if a prebendary bring a real action for land which he claims in right of his prebend, and do not name himself prebendary, this may be pleaded in abatement. So, if a præcentor in a cathedral church, claiming a prebend in right of his præcentorship, bring a quare impedit for it, and do not name himself præcentor. So, if a prior, being parfon of a church, had fued for a matter appertaining to that church, and had not named himself parfon. So, if a dean bring a præcipe or other action by reason of his being dean, he ought to be fo named. So, if a parfon fue for any thing in right of his parfonage, he ought to name himself parson (b). BUT if a man had brought an affize of a chapel which he held of the collation of the King, he needed not to have named himself parfon or chaplain; "because," it is said, "it did not appear that he was inftituted" (c): but I apprehend a better reafon might have been given; that he did not claim any thing by fuch a fuit in right of a parsonage or chaplainfhip already vefted in him, but afferted a right to be parson or chaplain. So, it is faid, a parfon needs not name himself parson against his bailiff for the profits of his church; nor in trefpals de parco fracto and affault, where he had taken a distrefs for fervices due to his church (d). (a) Skin. 27, 28. (b) Vid. Comyn's Dig. Abatement, E. 21. Theol. Dig. l. 3. c. 5. (c) Vid. last authorities. (d) Iid. ibid. So, So, where the action is not brought to affert a right in their corporate capacity, these persons need not use their corporate name; in which refpect they differ from a bishop, for the latter must in all cafes fue by the name of bishop, whether he fue in his corporate or in his private capacity, because Bishop is a name of dignity, like that of Duke or Earl (a). ARCHDEACON is faid not to be a name of dignity, and therefore an archdeacon needs not name himself Archdeacon, except where he sues in his corporate capacity (b). WHERE a person who is a fole corporation is fued for any thing in his corporate capacity, he muft alfo be fued in his corporate name: as, if land be demanded against a parfon which he holds in right of his church, he ought to be named parfon; fo, if a prior had been charged with an annuity, as parson of a church by title of prescription, he must have been fued in a writ of annuity, by the name of Prior and Parfon (c); and if fuch an annuity had been iffuing out of a parfonage, and the parfonage had been ap→ propriated to the mafter and scholars of a college; in a writ of annuity fued against them, they muft have been named by the name of their incorporation, and also by the name of parfon; but in fcire facias issuing out of a recovery in a writ of annuity had before the appropriation, it is faid to be fufficient to name them by the name of their incorporation (d). So, a writ of aflize brought against a warden of a chapel for a house, land, and rent, was abated, because the tenant (e) was not named Warden (ƒ). But (a) Com. Dig. Abat. E. 20. (d) Id. f. 6. (e) Tenant in a real action is equivalent to defendant in a perfonal action. (f) Com. Dig. F. 20. Th. Dig. 1. 6, c. 7 (8), f. 6. where an affize was brought against a warden of a chapel for the chapel itself, it was held that it was not necessary to name him Warden, because the fuit was brought to difaffirm his title (a). BUT where a fole corporation, whofe name is not a name of dignity, is fued for any thing that does not concern his corporate capacity, it is not neceffary to name him by his corporate name. As, if trespass be brought against a parfon, there is no need to name him parfon; nor in debt, unless it be brought on a bond given by the name of Parfon; and if a parfon be bound by the name of Parfon of the church of A. and he be removed and made parfon of the church of B. and afterwards a writ be brought against him, it must name him Parfon of B. late Parson of A. The fame principle applies to the cafe of a bishop who is tranflated from one bishopric to another (b). WHERE a quare impedit is brought against a defendant who claims an advowson in right of his prebend, it is said that it is not neceffary to name him Prebendary (c), perhaps because the plaintiff is not bound to know whether the defendant refifts his prefentation in his corporate or in his private capacity. It is a general rule, that a fole corporation who has the fee fimple in him, and may have a writ of right in his corporate capacity, as a bishop or dean (d), may be named in originals and other legal proceedings, whether he be plaintiff or defendant, by his chriftian name only, because his name of corporation is in lieu of a firname: (a) 7 E. 3, 328. 10 H. 7, 18. Th. Dig. ubi fup. f. 7. Vid. the remark in page 278, v. finem. (b) Th. Dig. 1. 6, c. 6 (7), f. 4. (c) Com. Dig. Abat. E. 20. Th. Dig. ubi fup. f. 8. (d) Vid. Co. Lit. 241. b. but but it is otherwife of a prebendary or parfon who have only the freehold, and cannot maintain a writ of right: they must be named both by christian and firname (a). IN the cafe of a corporation aggregate, there was formerly fome doubt made how far it was neceffary to mention the name of the head (b); but it has long been settled that it is not neceffary, because in their corporate capacity they have no name, but that by which they were incorporated, and that therefore it is not more neceffary to mention the name of the head, than that of any other of the members (c). If an action of account be brought by a mayor and commonalty without the proper name of the mayor, and the affignment of auditors be alleged to be by the aforefaid Mayor and Commonalty; it is no plea to fay, that fuch a one is then mayor, and was fo at the time of the writ purchased, and that HE and the commonalty did not affign auditors; because if the predeceffor of the prefent mayor, together with the commonalty, affigned the auditors, yet the fucceffor and the commonalty shall have the action, and count generally that the aforefaid mayor and commonalty affigned, because the word aforefaid applies to the corporate body at large, not to the particular mayor in whose time the action is brought: fo, if a mayor and commonalty had been diffeifed, and the mayor in whose time the diffeifin was, had died, the fucceffor and commonalty might have had an affize, and the writ should have been in general terms diffeised them (d). It is, in fact, more safe to omit the name of the head, for if his name be mentioned, and he die pending the ac (a) Vid. 2 Inft. 666. (b) Vid. 14 H. 4, 11.21 E. 4, 19. 9 H. 5,9. () 3 Salk. 103. 1 Leon. 307. (d) 12 E. 4, 9, 10, Bro. Corpor. 56. |