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FROM this time, it is probable, that the practice of joining fome individual with the corporation, as a defendant in his individual capacity, became common; and in the cafe of Wych and Meal (a), the propriety of it was recognised by Lord Talbot.

THIS was a bill brought by the plaintiff againft the Eaft India company, and one of the officers of the company, in order to discover some entries and orders in their books.The officer demurred, fhewing for cause, that it was not fo much as pretended by the bill that he had any interest in the matter in queftion; that his anfwer, if it were to be put in, could not be read against the company, as the answer of one defendant could not be made use of against the other; that the plaintiff, if he pleased, might examine the defendant as a witnefs; that on the fame principle on which he was made defendant here, the plaintiff might make the fervant of any private perfon a defendant; and that it was plain the plaintiff could have no decree against the defendant, the officer of the company.

THE Lord Chancellor obferved, this was a thing of consequence, which he did not remember to have been judicially determined; but fo far was plain, that the plaintiff was intitled to a difcovery of the matters charged in the bill; the cafe where a private person was de:endant, was different from that where a company were defendants; the latter could answer no otherwife than under their common feal; and though they answered ever fo falfely, there was no remedy against them for perjury: it had been an usual thing for a plaintiff, in order to have a discovery, to make the fecretary, book-keeper, or any other officers of the company, defendants, who had not demurred, but anfwered; whereas, if this demurrer fhould be allowed,

(a) 1734. 3 P. W. 311.

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the officers of companies were never likely to answer again; and though the plaintiff were intitled to a difcovery, he would never be able to obtain one; and consequently there would be a failure of juftice.-Befide this, although the answer of the defendant, the officer, could not be read against the company, yet it might be of use to direct the plaintiff how to draw and pen his interrogatories, towards obtaining a better difcovery; and fince no inftance was produced, where such a demurrer had been allowed, and it might be very mischievous and injurious to the fubjects, by allowing it, to deprive them of that discovery, to which, in common juftice, they were intitled; and as on the other hand no inconvenience could infue from obliging fuch officers of a company to answer; therefore he over-ruled the demurrer.

WHEN a perfon has reafon to fufpect he has fuftained an injury by perfons acting under the authority of a corporation, but cannot ascertain how far they are concerned, he may file a bill against them and their fecretary, or other officer, for a discovery, before he bring an action at law, fuggesting that he intends to bring one, but cannot do it without the discovery prayed: becaufe, as the fuit against a corporation is by original, the discovery may be neceffary before he can fue out his writ (a).

Ir a discovery of any of the matters called for, would be prejudicial to the corporation, and be not neceffary to the plaintiff's cafe, the officer needs not difcover those parts (b).

WHERE an action is brought by or against the mayor and commonalty of a city, the iffue must be tried by a (a) Vid. Moodamay v. Morton. I Brown. Ch. Cas. 471. (b) Id. ibid: cites the cafe of Walpole and Ellison v. White.

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jury of men who are strangers to the corporation, because the members of the corporation are interested in the event (a).

R Member of

ON the fame principle of being interefted in the event, a corporate it seems, that a custom in a corporation, on which they

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found a claim, cannot be proved by a member of the correfer poration (b); but one who has been a member of the corporation, and disfranchifed, may be a witness to prove fuch a cuftom; though, it is faid, a man cannot furrender his franchise by confent, in order to be enabled to be a witness (c).

IN an action of affumpfit, brought by the mayor and commonalty of London, for 51. due to them for feveral tons of wine, brought from beyond the feas to the port of London, at 4d. per ton, which was the duty of waterbailage; at a trial at bar, feveral freemen of London were offered as witnesses for the plaintiffs; the counsel for the defendant objected to them as being parties, and interested in the event, the commonalty of London comprehending all the freemen: it was answered that their interest ought not to be confidered, it being fo trivial and remote; that a small legatee had been fworn to prove a will; that in an indictment against the county for not repairing a bridge, one of the county might be a witnefs; and this, Dolben, J. faid he had known in the cafe of Peterborough bridge; it was likewise observed, that in an action against the hundred on the ftatute of Winton, the plaintiff is a witness from the neceffity of the cafe: to this it was replied, that the present was not a cafe of neceffity, for that the plaintiffs, though perhaps with difficulty, might have other witnesses befide freemen; and that the case of the ftatute of Winton

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(a) 10 Aff. pl. 13.
(b) 3 Keb. 12.

Bro. Corp. 4. Trial, 67.

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(c) 3 Keb. 295.

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did not apply, for that there, a hundredor could not be a witnefs. Scroggs, C. J. Dolben and Raymond, J. were of opinion, that the freemen ought to be admitted as witneffes, and Jones, J. that they ought not; on which a bill of exceptions was tendered by the counfel for the defendant, which the court proffered to feal, and to allow three or four days to draw it up; the plaintiff's counsel, however, produced other witneffes, which left the cafe of the freemen undecided (a).

ON a fubfequent occafion, the Lord Keeper, Sir Francis North, alluding to this case of the water-bailage, faid, "he thought it very hard, that no freeman of the city of London could be admitted as a witnefs, in a cafe that did not concern him fixpence; but that there, indeed, the fee was in question." This was in the cafe of the corporation of Sutton Coldfield against Wilson, in which the question was, whether a bond in the penaltý of 400l. was intended for the benefit of the corporation or of the defendant; and the witneffes for the plaintiffs being all members of the corporation, it was infifted that their depofitions could not be read, because they swore for their own benefit, and the exception was allowed; and the Lord Keeper said, that a‍ corporation ought to have a town clerk, or under clerks, freesual who were not freemen, that they might be competent witneffes when occafion required.

AT length, however, it appearing that the defendant had cross-examined fome of the plaintiff's witneffes, not only to questions, barely whether they were of the corporation or not, but to other questions which affected the merits of the caufe; the Lord Keeper declared that made them good witneffes, though they were members of the

(a) The cafe of the city of London, concerning the water-bailage. 1 Ventr. 351.

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corporation, and, on their evidence, the latter had a decree in their favour (a).

Insheets of IT appears to be a general rule, that in actions where a corporate book corporation and a ftranger are concerned, the latter fhall aya stranger not be affifted by the court to obtain inspection of the refsised books of the former; but that, if he conceive he can de

rive any advantage from them, he must give the corpora

tion notice to produce them on the trial.

THE firft cafe we meet with on this fubject, was an action of covenant against the defendant, as fecurity for one Thompson, late warehouse-keeper to the charitable corporation, in which the iffue was, whether Thompson actually did receive certain goods with which he was charged: an application was made on behalf of the defendant for liberty to inspect the corporation books, on the principle that they were public books: the court doubted whether they were of that description, and therefore made no rule; but told the defendant's counsel that he might give the corporation notice to produce them at the trial(b).

THE next cafe, indeed, directly contradicts the rule: it was an action brought by the Brewers' Company, on a bye law, against the defendant for exercifing the trade of a brewer without being a member of the company: on behalf of the defendant, application was made to the court for a rule to infpect the books of the company and take copies, which was granted, on the ground that strangers had an intereft in bye laws which affected them (c).

LITTLE regard, however, is due to this cafe, because the principle on which it is founded was impeached in a fubfequent cafe, which feems to have been more maturely

(a) Sutton Coldfield v. Wilfon. 1 Vern. 254.

(b) Tr. 8 G. 2. Charitable Corporation v. Woodcraft, B.R. H. 130. (c) Eaft. 19 G. 2. Brewers' Company v. Benfon. Barnes, 236.

confidered.

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