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mystery of Feltmakers of London aforesaid, in the sum of other rol. 1797 which he as such member of the said company had before then forfeited to the said Master and Wardens of the said company for FILTMAKERS

Company of the use of the faid society, under and by virtue of a certain by-law

Davis, or ordinance of the said company before that time duly made, ratified, allowed, and approved, for having refused to take upon him, and for not taking upon him the office of Renter Warden of the said company, to which said office he the said W. Daris had before then been duly elected and chosen, to wit, at, &c. By reafon of which last mentioned premises an action hath accrued to the said Matter, Wardens, and Commonalty to demand and have of and from the said W. Davis, for the use of the said company or fociety, the said laft-mentioned fum of 10l. fo forfeited as last aforesaid, being the residue of the said sum of 20l. above demanded, to wit, at, &c. Yet the faid W. Davis (although often requested) hath not yet paid the said sum of 2ol. above demanded, or any part thereof, to the faid Master and Wardens, for the use of the said fociety, or to the said Mafter, Wardens, and Commonalty, or to any or to either of them; but to pay the same or any part thereof to the said Master and Wardens, for the use of the faid fociety, or to the faid Master, Wardens, and Commonalty, or to any or either of them, he the said W. Davis hath hitherto wholly refused and still doth refuse to the said Master, Wardens, and Commonalty, their damage of 1ol."

To the ift count the Defendant pleaded Nil debet, and to the 2d demurred specially, and afligned for causes, “ That the ground of the supposed forfeiture in that count, alledged to have been incurred by the faid W. Davis, is not set forth; and also that the faid supposed forfeiture is there ftated to have been incurred to the Mafter and Wardens of the faid company, for the use of the said society, whereas the faid Master and Wardens are not the Plaintiffs in the said action; and also that no power or authority, by custom or otherwise, is set out to warrant the making any by-law or ordinance to create a forfeiture by the said company; and also that the supposed by-law or ordinance in that count mentioned, is not mentioned to have been ratified, allowed, or approved of according to the form of the statute in such case made and provided; and also that no title is shown in the said Mafter, Wardens, and Commonalty, to the said supposed forfeiture; and also that the faid count is too general, and does not set forth the fupposed cause of action with fufficient certainty to enable the faid William to defend himfelf against the same; and that the faid H 2

count

1797.

Company of FELTMAKERS

Davis.

count is in other respects defective and imperfect.” The Plaintiffs joined in demurrer.

Clayton Serjt. in fupport of the demurrer. This is the first instance of such a count being brought before the Court. All the precedents state, in regular order, the different facts which bring the Defendant within the penalty. A declaration ought to contain such things “ whereunto the adverse party may answer, and whereupon the Court is to give judgment.” Co. Litt. 303. a. The first objection to this count is, that it does not set out the by-law, which is the ground of the forfeiture. The words here are, “ by virtue of a certain by-law:” non constat that the by-law alluded to is a good one. To shew that any penalty is incurred under a by-law or statute, the party must be brought within the terms of that by-law or statute. In the latter case it is the common practice: and the Court will not be more favourable to a penalty under a by-law, than to a penalty imposed by the Legiflature. As the by-law is not set out, the Defendant is deprived of the opportunity of taking the opinion of the Court on its validity. The second objection is, that it does not appear that the Feltmakers' company had any authority to make the by-law in question. In the Vintners' company v. Palley, 1 Burr. 235. a plea setting up a by-law as a defence, and not fhewing the authority of the Court which made it, was admitted to be bad. In Com. Dig. tit. Pleader, (2 W.11.) it is said, " a declaration for a penalty of a by-law must shew a power to make, by-law made, and breach,” and refers to 2 Vent. 243. i Bro. Ent. 170. There are many other precedents in Brown to the same effect; to which may be added Lilly's Ent. 153. The third objection is, that the liability of the Defendant is not stated. It is only averred that he was a member of the company, but in order to incur this penalty he must not only be a member of the company, but one of the assistants. The last objection is, that the Plaintiffs have no right to fue for the penalty. It is forfeited to the Master and Wardens, to the use of the Master, Wardens, and company. Now if a fum be forfeited to A. and B. what right can A. B. and C, have to claim it?

Per Curiam. As to the second objection, the power of making by-laws is incident to every corporation (á), either by the body at large or by a select part; and it is in the latter cafe only that the power need be shewn (a). The Court of Lord Mayor and Alder- 1797men, which made the by-law relied on in the plea in i Burr. 235. was collateral to the company of Vintners; it was a different

(a) 10 Co. 31. a. Norris v. Slaps. Hob. Car:b. 482. S.C. Lord Ray. 4.8. S. C. 211. City of Lonion v. Vanacre, 5 Mud. Holt 431. S. C. 439. 12 Mod. 270. S. C. 1 Salk. 142. S.C.

power

Company of

FELTMAKERS body, having no such neceflary relation to the Vintners' company

Davis. as the Court could take notice of judicially. As to the 3d objection the prefent defendant is stated to be “ such member," i.e. that member which is before described in the first count.

Le Blanc Serjt. for the Plaintiffs. In old time it was necessary to ftate many things at length which are not now required. Thus indebitatus affumpfit for fines and tolls has been held good, Mayor of Exeter v. Trimlet, 2 Wilf: 95. even on special demurrer. Seward v. Baker, 1 T.R.616. Whitfield v. Hunt, Doug. 727. n. The declaration in the Barber Surgeons of London v. Pelson, 2 Lev. 252. appears to have been a general (6) asumpfit for the penalty of a by-law, and was held good on demurrer. It does not appear by the words of the general count that the present penalty is forfeited to the Mafter and Wardens to the use of the body at large. Even if it did, I fubmit that the party for whose benefit the penalty is forfeited may bring the action (c). If a promise be made to A. for the benefit of B., B. may maintain an action on that promise. The Master and Wardens as such have no power to fue and be sued; the only way in which they could declare must be as individuals; one with an averment that he was at the time Mafter, the others with an averment that they were at the time Wardens. But if these individuals died, they could not fue by their executors.

EYRE Ch.J. The forfeiture in question is to be paid to the Mafter and Wardens, to the use of the Master, Wardens, and company. If the by-law is badly framed, it is the fault of those who framed it. If they have chosen to empower their Master and Wardens to fue, the Court cannot look any further: no regulation

(a) See the King v. Lyme Regis, Doug. (c) In Marcbington v. Vernon and others, 2 Taun. 383. 158, 159.

Situings at Guildhall, Trin. 27 G. 3. B. R., (6) It was observed by the Court that as which was affumpfit on a bill of exchange, the necessity of a special count was not the by the holder against the Defendants (alpoint on which the Barber Surgeons v. fignees of the drawee), who had given a Peljen turned, all the necessary circum- promise to the drawer that they would hoAances might possibly have been flated on nour the bill, Buller J. laid, Independent of the record, though they do not appear in the the rules which prevail in mercantile transreport. But on a reference to the record, actions, if one person makes a promise to B.R. Pafcb. 31 Car.2. Ref. 428. in the another for the benefit of a third, that third King's Bench treasury office, the declaration perion may maintain an action upon it See appears to be only a general indebitatus af- Comb. 219.; 8 Mod. 117. allo Dutton v. fumpfit, for a fum forfeited by virtue of a Pool, i Vent. 318. 332. cited and relied on by-law of the company, kc.

by Lord Mansfield in Marijon v. Hinde,
Coτυρ. 443. .

with

H 3

Davis.

1797. with respect to the payment of the money by them to any other

persons will vary the right of action. · As to the case put at the Company of, bar, of a promise to X. for the benefit of B. and an action

brought by B., there the promise must be laid as being made to B., and the promise actually made to A. may be given in evidence to support the declaration. The Master and Wardens may bring

the action, and apply the money to the use of the company. They 2 Таил. 386. may fue in the fame manner as the Chamberlain of London (a)

does for the Corporation of London : and they would probably declare both in their natural and official capacities. But in truth this is but one of many objections. I think this count is perfectly new, and cannot be supported. I would go as far as poflible to prevent loading the record with unnecessary matter : but if I find myself obliged to pronounce that the matter omitted is necessary, (and as at present advised it does appear fo to me,) and that noreference is made to the by-law on which the forfeiture accrues, I must hold the count bad, unless a series of authorities could be shewn to prove the contrary. It is not stated in this second count, that the by-law under which the forfeiture accrued, which is the ground of that count, is the fame by-law as that mentioned in the first count: it only says, “ by a certain by-law.” Now if we cannot refer to the first count in order to get at the constitution of the Corporation, which is to determine where the power of making by-laws resides, and that the by-law in question was actually made according to that constitution, this demurrer muft prevail. I never yet saw a count on a forfeiture of this kind which did not ftate all these circumstances. It may not have been amiss to try if one of these general counts could be slipped into practice, but here unfortunately the blot has been hit. In the case of tolls, I suppose the Court proceeded on the idea that they were known to constitute a right of action, and calling them tolls generally was held fufficient. But in debt on bond, if the Plaintiff were to state generally in his declaration, that the Defendant “was indebted to him on a certain bond,” it would not be good. This claim for a penalty under a by-law arises on something in the nature of a specialty. It is true that in affumpfit greater latitude is allowed : because after all it comes to a question upon evidence what legal consideration there is either to support or to raise the assumpfit. I must confess I think that it was an extraordinary proposition to admit, that these general counts were good in the cases of tolls and

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(a) Vid. the Chamberlain of London's cited 1 Wilf. 235. which was debt on a bycase, s Co. 63. and Hollings v Hungerford, law by she Chamberlain of Brifiol.

5

copyhold

1797.

copyhold fines, and I wonder that the courts ever went that
length.
Per Curiam,

Judgment for the Defendant.

Company of FELTMAKERS

Davis,

GREENSILL V. HOPLEY.

Nog. Isthe

BAIL
All being brought up to justify, and it appearing on their The Court will

examination that though they had no written indemnity, reject bail who yet that they looked to the honour of the Defendant's attorney a verbal promise for being indemnified, who had faid that they should not be suf- of indemnity

from the Deferers;

fendant's attor Paliner Serjt. who opposed them, cited the rule (a) of Court ney; but will

give time to put Hil. 37 Geo. 3.

Le Blanc Serjt. for the Defendant.

The Court refused the bail, but faid, that as this was pressing the rule to its utmost extent, they would allow the Defendant time to put in fresh bail.

in freth bail.

(a) Hil. 37 Geo. 3. “ It is ordered that from and after the last day of this term no person or persons Thall be permitted to justify himself or themselves as good and iutadent bail for any Defendant or Defend.

ants in this Court, if such person or persons
shall have been indemnified for fo doing by
the attorney or attorneys concerned for
such Defendant or Detendants."

Nov. Abth.

ROBERT ALMGILL and IsabelLA his Wife, Demand

ants v. JAMES BRADSHAW PIERSON the Elder, and

JAMES Bradshaw Pierson the Younger, Tenants. ADAIR

Serjt. on a former day obtained a rule to fhew cause Judgment as in why judgment as in case of a nonsuit should not be entered case of a nonfuit up in a writ of right.

inay be entered

up against the The tenants had been in poffeffion since the year 1746; issue demandant in a in the cause was joined Trinity term 1796; notice of trial was nor will the given at the Lent assizes 1797, when the grand assize was elected; Court reliere but the demandants neglected to proceed to trial at the Summer conducted himaflizes following

self unfairly too

wards the cenant Williams Serjt. on this day shewed cause. Though the 14 G.2. in the course of 6.15. only makes use of the words “ Plaintiff” and “ Defend- the proceedings. ant,” yet from the authorities and practice on the subject it seems admitted, that judgment as in case of a nonluit may also be

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