having read a note (a) from the book of one of the officers, by which it appeared that the practice of this Court differed from that of the King's Bench in this refpect, they faid that cofts for not proceeding to trial might be given on the motion for judgment as in cafe of a nonfuit, and accordingly with that condition (a) The name of the cafe mentioned in the above note, where the Court of K. B. related to give fuch cofts, unlets on a iepa Difcharged the rule. rate motion, was Triands v. Goldsmith and 1797: JOLLIFFE ญ. MOKRIS. TH RICE V. BROwn. May 27th. pay colts. may receive them 6 Eaft, 505. HE Plaintiff in this cafe fued as a pauper: and the caufe ftand- A pauper, as ing in the paper for trial, on the firft fitting in Eafter Terin, ch, can never was on that day made a remanet, until the fecond fitting in the Semb. That he fame term, by an order of nifi prius at the inftance of the Defend- for the defaults ant, he undertaking to pay the cofls of the day, and alfo of that of his opponents. application. The order was made a rule of this Court, and the cofts allowed by the prothonotary; but the Defendant refused to pay them in confequence of which, Runnington Serjt. on a former day moved for an attachment. When this was firft mentioned, the Court feemed to entertain ftrong doubts whether a pauper could be allowed cofts; and Runnington was defired to look into the matter. On this day he contended, that it was regular for a pauper to recover cofts, and that it was the practice to allow them, where, had he not been a pauper, he would by the verdict have been entitled to them. He cited 3 Bl. Com. 401., where it is faid, "a "pauper may recover cofts, though he pays none;" and Scatchmer v. Foulkard, 1 Eq. Ca. Ab. 125., where Lord Somers, after much inquiry, ordered cofts to a pauper; "for though he were at no "cofts, or at fmall cofts, yet the counfel and clerks did not give "their labour to the Defendant, but to the pauper." He said in Walker v. Packer, Cooke's Cafes of Practice in C. P. 47, the Court ordered cofts to be taxed againft a pauper for not proceeding to trial, and declared that a pauper fhould pay cofts for all defaults, as an executor or adminiftrator fhould for their own defaults (b). If then a pauper was liable to pay cofts for his own defaults, why 1797 RICE BROWN. fhould he not receive them for thofe of his opponent. He urged that in this cafe, it was hardly within the difcretion of the Court to refuse them, fince the application was founded on consent, and a voluntary undertaking to pay the cofts which had been made a rule of Court. Cockell Serjt. contrà, faid, (and it was allowed on the other fide,) that the pauper had not the smallest merits on the trial. Per Curiam. The cafe that has been cited refpecting the payment of cofts by a pauper, is not law. The mode of proceeding by the Court is this: where a pauper mifbchaves himself, he is difpaupered in confequence (a), and fo becomes liable to cofts. In this cafe, however, the attachment muft iffue. (e) 2 Str. 1122. 2 Salk. 506. 3 Wilf. 24. and the cafes cited therein. In Butler v. Inneys Ux. 2 Str. 891. a pauper having been nonfuited in a firit action, and having recovered in a second, the Court refused to deduct out of the recovery in the fecond action the coûts of the first, May 27th. 3 Campb 30. Plaintiffs were incorporated by the name of "the Maver and Bur in the county of Stafford," and fued by the name of the Moyor and Burgees of the borough of Stafford." This and not in bar. Mayor and Burgeffes of STAFFORD V. BOLTON. "HIS was an action on the cafe for tolls. THIS 66 The declaration began, "That whereas the town of Stafford in the county of Stafford is, and from time immemorial geffes of the bo-hath been, an antient borough; and the burgeffes of the faid rough of Stafford borough from time immemorial have been a body politic and "corporate in deed, fact, and name, and have been confirmed by "divers letters patent, of divers late kings and queens of England, at divers times, by divers names of incorporation, and for divers, "to wit, fifty years last past, have been fuch body politic and coris in abatement,porate, by the name of the Mayor and Burgeffes of the borough of Stafford." It then went on to ftate that, "the faid mayor and burgeffes had been accustomed to repair the pavements of the "faid borough, for the more convenient bringing of corn and "grain into the faid borough, and by reafon thereof had been aç"cuftomed to receive a reasonable toll for all corn or grain brought "into the faid borough, to be fold or delivered to any perfon " within the faid borough; that one E. H. brought into the said borough, within the fame to be delivered, and within the fame "actually delivered to the Defendant, divers, to wit, forty bufhels "of oats; that thereupon the faid mayor and burgeffes demanded "of the Defendant half a bufhel of oats as and for the faid toll; "that "that the faid Defendant refused to deliver the fame to the "faid mayor and burgeffes," &c. 1797. Plea not guilty, and iffue joined thereon. Mayor and Burgeffes of This came on to be tried before Thomfon Baron, at Stafford STAFFORD Spring Affizes 1797. The Plaintiffs produced in evidence a charter of 12 Jac. 1. which after reciting, "That whereas our borough of Stafford in "the county of Stafford is an antient and populous borough, " and the burgefles of that borough from time whereof, &c. have “had, used, and enjoyed divers liberties, &c. as well by our "charters, as thofe of divers of our progenitors and predeceffors, "late kings and queens of England, to them and their prede"ceffors, fometimes by the name of burgefies of Stafford, and "fometimes by the name of burgeffes of the borough of Stafford, "and fometimes by the name of burgeffes of the town of Stafford, "and fometimes by the name of the bailiffs and burgeffes of the "borough of Stafford in the county of Stafford, and by other "names heretofore made, granted, or confirmed, as alfo by "reafon of divers prefcriptions, ufages, and cuftoms in the faid "borough, ufed and accuftomed," &c. and alfo reciting letters patent of 3 Jac. 1. by which the burgeffes and inhabitants of the borough aforefaid, "by whatever name or names they had been "theretofore incorporated, or whether they had been lawfully "incorporated or not, for the future for ever, without any doubt " or ambiguity thereof, were incorporated by the name of bailiffs "and burgeffes of the borough of Stafford in the county of Staf"ford," &c. proceeded: "We will, ordain, constitute, and grant, "that the faid borough of Stafford in the aforefaid county, in fu"ture, may and fhall be a free borough of itfelf, and that the bai ❝liffs and burgeffes of that borough, and also all and fingular "the burgeffes and inhabitants of the fame borough, by whatso"ever name or names they or their predeceffors have heretofore "been incorporated, and whether they have been heretofore in"corporated or not, and their fucceffors in future, for ever may " and shall be by force of thefe prefents one body corporate and "politic, in deed, effect, and name, by the name of the Mayor and Burgeffes of the Borough of Stafford in the county of Stafford; and "them by the name of the Mayor and Burgeffes of the borough of "Stafford in the county of Stafford, one body corporate and politic, "in deed, effect, and name, really and to the full for us, our heirs "and fucceffors, we do erect, ordain, conftitute, and declare by thefe prefents, and that by the fame name they fhall have per "petual บ. BOLTON, 1797. Mayor and Burgeffes of STAFFORD บ. BOLTON. "petual fucceffion, &c. and that by the fame name of mayor and "burgeffes of the borough of Stafford in the county of Stafford, "they may plead and be impleaded, anfwer and be answered "unto, defend and be defended, in any courts and places, and "before any judges and juftices, &c. in all and fingular actions, "&c. in the fame manner and form as any other our licge fubjects of this kingdom of England, perfons able and capable in "law, or any other body corporate and politic within our king"dom of England, are able to plead and be impleaded, answer "and be answered unto, defend and be defended," &c. On this evidence, the Defendant's counfel objected that there was a variance between the name of the corporation in the charter and that in the declaration; and after fome argument, the learned Judge nonfuited the Plaintiffs. On the 1st day of this term Williams Serjt. obtained a rule to fhew caufe why the nonfuit fhould not be fet afide, and a new trial be had. He cited Bro. Abr. Mifnomer 73. Briefe 398. and 10 Co. 122. Le Blanc Serjt. now fhewed caufe. This is a corporation by prefcription and charter; the charter contains a recital of the various names by which the Plaintiffs have been known, but makes no mention of that by which they have declared: it gives them a particular name by which they may fue and be fued, and to which therefore they are bound to adhere. A corporation by charter can have no other name than that which it receives from the Crown, and whenever any fubfequent charter is accepted by a particular name, all former names are done away. The queftions are; Whether the mayor and burgeffes of the borough of Stafford be the fame as the mayor and burgeffes of the borough of Stafford in the county of Stafford? and whether the variance could be taken advantage of on the trial, or ought to have been pleaded in abatement? Suppofe an action for toll brought by A. B. C., and it appeared that the right was in A. C. D. could they have recovered? Suppofe the Plaintiffs had called themfelves the mayor and burgeffes of the borough of Stratford, they would not have fhewn themfelves to be the perfons entitled to the toll. If you admit a variance of locality, you may admit a variance of perfon: by first taking away one part and then another, though each feparate variation be of fmall importance, the name will be completely altered. There are cafes where variances in the names of corporations have been paffed over; as in King's Lynne, 10 Co. 123. but all those were cafes of leafes or other fecurities; and and it is laid down in the Books that "there is a found difference "betwixt writs and grants," 10 Co. 125. b. So in Gilb. C. B. 234. "there is a difference between writs, declarations, &c. and " obligations and leafes; for if the name of a corporation be "miftaken in a writ, a new writ may be purchafed of common right, but it were fatal if miftaken in leafes and obligations, " and the benefits of them would be wholly loft; and therefore "one ought to be fupported, and not the other. John Abbot “of W. granted common of pafture to I. S., by the name of “William Abbot of I.; this is good enough caufâ quà fuprà ; " but if this name had been thus miftaken in a writ, it had "been fatal." As for the cafe of King's Lynne, it was an attempt by the Defendant to avoid his own deed; befides the verdict had found that the obligor had made the bond to the Plaintiffs, by the name in the declaration. If that name be altered in the defcription of a corporation which is given to it by charter, it ceafes to be a corporation. It is laid down every where, that locality is of the effence of a corporation; if fo, leaving that uncertain, or giving it a wrong defcription, is completely changing the name. The Court can draw no line in variances of this kind. It is true, that in the 25 Ed. 3. 48. where a præcipe quod reddat againft the prior of Worcester, was præcipe priori Wigornice, and the prior pleaded that in Worcester there were two priories, viz. the priory of Friars Preachers, and the priory of Our Lady, and that it ought to have been, Priori Ecclefiæ S. Mariæ Wigorniæ de Wigornia; the writ was abated. But there it was the Defendant who was mifnamed; he knows his proper title, and may abate the writ, and give a new one. But here, unless the Plaintiffs demand the toll in the name given them by the Crown, they fhew no title (a); for although a Plaintiff may reply that a Defendant is known as well by the one name as the other, he cannot reply that of his own name. Shepherd Serjt. on the fame fide. Williams contrà was ftopped by the Court. EYRE Ch. J. If it cannot be denied that this variance might have been pleaded in abatement, it decides the queftion. The arguments on the part of the Defendant go to fhew that it ought to be in bar. A corporation is a mere creature of the Crown, having no effence but what is derived from its name. On ftrict reafoning therefore I fhould be inclined to think, that if a corporation fued by a name which did not belong to it, it would be as (4) Patrick and Peffer's cafe, at O,B. Seffion, February 1783, before Bull † J. Leach, 244. nothing. 1797. Mayor and Burgeffes of STAFFORD V. BOLTON. |