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1797

JOILITYE

having read a note (a) from the book of one of the officers, by which it appeared that the practiceof this Court differed from that of the King's Bench in this respect, they said that costs for not proceeding to trial might be given on the motion for judgment as in case of a nonfuit, and accordingly with that condition

Discharged the rule.

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(a) The name of the case mentioned in the above note, where the Court of X. B. idade co gire luich costs, unlets on a lepa

Tate motion, was Triands v. Goldsmith and
Another.

THE

pay costs.

Rice V. BROWN.

Mag 27th.

6 Ea;?, 305. IE Plaintiff in this case fued as a pauper: and the cause stand- & pauper, as

luch, can never ing in the paper for trial, on the first fitting in Easier Terin, was on that day made a remanet, until the second fitting in the Semb. That he fame term, by an order of nifi prius at the instance of the Defend- for the defaules ant, he undertaking to pay the costs of the day, and also of that of his opponents. application. Theorder was made a rule of this Court, and the costs allowed by the prothonotary; but the Defendant refused to pay them: in consequence of which, Runnington Serjt. on a former day moved for an attachment.

When this was first mentioned, the Court feemed to entertain trong doubts whether a pauper could be allowed costs; and Runnington was defired to look into the matter.

On this day he contended, that it was regular for a pauper to recover costs, and that it was the practice to allow them, where, had he not been a pauper, he would by the verdiet have been entitled to them. He cited 3 Bl. Com. 401., where it is faid, “ a "pauper may recover costs, though he pays none;" and Scatchmer 5. Folkard, 1 Eq. Ca. Ab. 125., where Lord Somers, after much inquiry, ordered costs to a pauper ; " for though he were at no “ costs, or at small costs, yet the counsel and clerks did not gire "" their labour to the Defendant, but to the pauper.” He said in Palker v.Packer, Cooke's Cafes of Practice in C.P.47., the Court ordered cofts to be taxed against a pauper for not proceeding to trial, and declared that a pauper should pay costs for all defaults, as an executor or administrator should for their own defaults(b). If then a pauper was liable to pay costs for his own defaults, why

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1797

Rice

BROWN.

Mould he not receive them for those of his opponent. He urged that in this case, it was hardly within the discretion of the Court to refuse them, fince the application was founded on confent, and a voluntary undertaking to pay the costs which had been made a rule of Court.

Cockell Serjt. contra, faid, and it was allowed on the other fide,) that the pauper had not the smallest merits on the trial.

Per Curiam. The case that has been cited respecting the payment of costs by a pauper, is not law. The mode of proceeding by the Court is this: where a pauper misbehaves himself, he is dispaupered in consequence (a), and so becomes liable to costs. In this case, however, the attachment must issue.

(e) 2 Str. 1122. 2 Salk. 506.3W 1f. 24. recovered in a second, the Court refused to and the cases cited therein.

In Butler v.

deduct out of the recovery in the second Inneys & Vr. 2 Str. 891. a pauper having action the coits of the firil. becni nonsuited in a lirit action, and having

May 27th.

the name of the

in the county of

Mayor and Burgesses of STAFFORD V. Bolton. 3 Campb 30. Plaintiffs were THI

THIS was an action on the case for tolls. incorporated by The declaration began, “ That whereas the town of Staf. Maycr and Bur

ford in the county of Stafford is, and from time immemorial gefses of the bo. “ hath been, an antient borough; and the burgesses of the said

ou borough from time immemorial have been a body politic and Stafford," and

“ corporate in deed, fact, and name, and have been confirmed by sued by the name of the Moyor

“ divers letters patent, of divers late kings and queens of England, and Burgelses of " at diverstimes, by divers names of incorporation, and for divers, the borough of Stafford." This “ to wit, fifty years laft past, have been such body politic and coris in abatement, porate, by the name of the Mayor and Burgesses of the borough of and not in bar.

Stafford.It then went on to state that, “ the said mayor and “ burgesses had been accustomed to repair the pavements of the “ faid borough, for the more convenient bringing of corn and

grain into the said borough, and by reason thereof had been ac“ cuftomed to receive a reasonable toll for all corn or grain brought “ into the faid borough, to be sold or delivered to any person “ within the faid borough; that one E. H. brought into the said “ borough, within the fame to be delivered, and within the same

actually delivered to the Defendant, divers, to wit, forty bushels « of oats; that thereupon the said mayor and burgeffes demanded ti of the Defendant half a bushel of oats as and for the said toll;

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1797

Mayor and
Burgefles of

BOLTON,

"that the said Defendant refused to deliver the same to the "jaid mayor and burgefles," &c.

Plea not guilty, and issue joined thereon.

This came on to be tried before Thomjon Baron, at Stafford Spring Afrizes 1797.

The Plaintiffs produced in evidence a charter of 12 Jac. 1. which after reciting, “ That whereas our borough of Staffiord in " the county of Siassurd is an antient and populous borough, " and the burgetles of that borough from time whereof, &c. have " had, uted, and enjoyed divers liberties, &c. as well by our “ charters, as those of divers of our progenitors and predecessors, " late kings and queens of England, to them and their prede“ceffors, fometimes by the name of burgeffes of Stafford, and “ fometimes by the name of burgesses of the borough of Stafford, 6 and fometimes by the name of burgesses of the town of Stafford, " and fometimes by the name of the bailiffs and burgesies of the "borough of Stafford in the county of Stafford, and by other "names heretofore made, granted, or confirmed, as also by “ reason of divers prescriptions, usages, and customs in the said "borough, used and accuftomed,” &c. and also reciting letters patent of 3 Jac. 1. by which the burgesses and inhabitants of the borough aforesaid, “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 burgesses of the borough of Stafford in the county of Staf"ford,” &c. proceeded: “We will, ordain, constitute, and grant, " that the said borough of Stafford in the aforesaid county, in fu“ ture, may and shall be a free borough of itself, and that the bai, “ liffs and burgesses of that borough, and also all and fingular

the burgesses and inhabitants of the fame borough, by whatso" ever name or names they or their predecessors have heretofore “ been incorporated, and whether they have been heretofore ins corporated or not, and their fucceffors in future, for ever may " and shall be by force of these presents one body corporate and “politic, in deed, effect, and name, by the name of the Mayor ard Burgesses of the Borough of Stafford in the county of Stafford; and " them by the name of the Mayor and Burgesses 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 successors, we do erect, ordain, constitute, and declare by " these presents, and that by the fame name they shall have per

“ petual

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1797

Mayor and
Burgesses of
STAFFORD

BOLTON.

" petual fucceffion, &c. and that by the same name of mayor and

burgesses of the borough of Stafford in the county of Stafford,

they may plead and be impleaded, answer and be answered! “ unto, defend and be defended, in any courts and places, and “ before any judges and justices, &c. in all and fingular actions, “ Sc. in the same manner and form as any other our liege sub

jects of this kingdom of England, persons 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 counsel objected that there was a variance between the name of the corporation in the charter and that in the declaration; and after some argument, the learned Judge nonfuited the plaintiffs.

On the 1st day of this term Williams Serjt. obtained a rule to shew cause why the nonsuit should not be set aside, and a new trial be had. He cited Bro. Abr. Mifnomer 73. Briefe 398. and 10 Co. 122.

Le Blanc Serjt. now shewed cause. This is a corporation by prescription 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 sued, 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 subsequent charter is accepted by a particular name, all former names are done away. The queftions are; Whether the mayor and burgesses of the borough of Stofford be the fame as the mayor and burgefics 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? Suppose an action for toll brought by A. B. C., and it appeared ihat the right was in A.C. D. could they have recovered? Suppose the Plaintists had called themselves the mayor and burgeffes of the borough of Stratford, they would not have shewn themselves to be the perfons entitled to the toll. If you admit a variance of locality, you may admit a variance of person: by first taking away one part and then another, though each separate variation be of small importance, the name will be completely altered. There are cases where variances in the names of corporations have been passed over; as in King's Lynne, 10 Co. 123. but all those were cases of leases or other fecurities;

and

BOLTON.

and it is laid down in the Books that “there is a sound difference 1797 “ betwixt writs and grants,” 10 Co. 125.6. So in Gilb. C. B. 234. “ there is a difference between writs, declarations, 8c. and

Mayor and

Burgesses of * obligations and leafes; for if the name of a corporation be STAFFORD * miftaken in a writ, a new writ may be purchased of common * right, but it were fatal if mistaken in leases 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 pasture to I. S., by the name of
Hilliam Abbot of 11.; this is good enough caufâ quà fupra;
* but if this name had been thus mistaken in a writ, it had
“ been fatal.” As for the case of King's Lynne, it was an at-
tempt by the Defendant to avoid his own deed; besides the ver-
dia had found that the obligor had made the bond to the Plain-
tiffs, by the name in the declaration. If that name be altered in
the description of a corporation which is given to it by charter,
it ceases to be a corporation. It is laid down every where, that
locality is of the essence of a corporation; if so, leaving that un-
certain, or giving it a wrong description, 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 precipe quod reddat
against the prior of Worcester, was prccipe priori IVigornice, and
the prior pleaded that in Iorcester 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. Marie Wi-
gorniæ de Wigorniá; 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, unlefs the
Plaintiffs demand the toll in the name given them by the Crown,
they shew 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 stopped 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 thew 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
reasoning therefore I should be inclined to think, that if a corpo-
ration sued by a name which did not belong to it, it would be as
(c) Patrick and Peffer's case, at 0.B. Sellion, February 1783, before Bull r J. Leab, 2 14.

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