Mellor v Spateman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 489
COURT OF KING'S BENCH
Referred to, Harrop v. Hirst, 1868, L. R. 4 Ex. 46; Johnson v. Barnes, 1872, 1873, L. R. 7 C. P. 604; 8 C. P. 527; Goodman v. Saltash Corporation, 1882, 7 App. Cas. 657; Robertson v. Hartopp, 1889, 43 Ch. D. 502.
[339] 57. mellok versus spateman. Pasch. 21 Car. II. Eegis, Eol. 249. [Referred to, Harrop v. Hirst, 1868, L. E. 4 Ex. 46; Johnson v. Barnes, 1872, 1873, L. E. 7 C. P. 604 ; 8 C. P. 527 ; Goodman v. Saltash Corporation, 1882, 7 App. Gas. 657; Boberhon v. Hartopp, 1889, 43 Ch. D. 502.] Derbyshire, to wit.-John Spateman late of Derby in the said county gent, was attached to answer Henry Mellor gent, of a plea, wherefore with force and arms he broke and entered the close of the said Henry, called Littlefield, at Derby aforesaid, and his grass(1) "then and there" lately growing, with feet in walking, and with his cattle eat up, trod down, and consumed, and other wrongs to him did, to the great damage, &o. and against the peace of our said lord the now King, &c. And whereupon the said Henry, by Alvered Motteram his attorney, complains that the said John, on the 20th day of October in the 20th year of the reign of our said Lord Charles the Second now King of England, &c. with force and arms, &c. broke and entered the said close at Derby aforesaid in the county aforesaid, and his grass, to the value of 100 shillings, then and there lately growing, with his feet in walking, and with his cattle, to wit, horses, bulls, cows, sheep, and swine, eat up, trod down, and consumed, and other wrongs, &c. to the great damage, &c. and against the peace, &o.; wherefore he says that he is worse, and has damage to the value of 201.: and therefore he brings suit, &c. And the said John Spateman, by John Chambers his attorney, comes and defends the force and injury when, &c.; and as to the coming with force and arras, or whatever else is against the peace of our said lord the now King, and also the whole trespass aforesaid with the said cattle, except with two geldings and two mares, he the said John Spateman says that he is not thereof guilty, and of this he puts himself upon the country; and the said Henry thereof likewise, &c. : and as to the said trespass with two geldings and two mares, and with feet in walking, above supposed to be done, he the said John Spateman says, that he the said Henry ought not to have or maintain, his said action thereof against him, because he says that the said close, and also the place in which the said trespass is above supposed to be done, are, and at the said time when, &c. were, 20 acres of land with the appurtenances, in Derby aforesaid, which said 20 acres of land with the appurtenances, are, and at the said time when, &c. and [340] also from time whereof the memory of man is not to the contrary, were parcel of a certain common field called Littlefield, in Derby aforesaid. And the said John Spateman further says, that the borough of Derby in the county of Derby is an ancient borough ; and that he the said John Spateman is, and at the said time when, &a. and long before was, and yet is one of the burgesses of the said (1) The words "then o,nd" should be omitted, for there is no time previously mentioned, to which " then " can relate; and besides, the usual form of the declaration, in the recital of the writ, is " there lately," without the word then.(a) (a) [See ante, p. 288, note (a).] K. B. xiv.-16* 490 MELLOR V. SPATEMAN 1 WMS. SAUND. 340. borough; and that the burgesses of the said borough, from time (2) whereof the memory (2) A corporation by prescription may have different names, Buch as "burgesses," or " bailiffs and burgesses," and other like names. But if the name of " bailiff's and burgesses," or " mayor and burgesses," or the like, be a name they have received within time of memory, they cannot prescribe by it, but by their ancient name until such a time (when it was changed), and then by their new name, and should also shew how the name was changed, as is done in this precedent. Bro. Prescription, 70. Hardr. 504, Attorney-General v. Farnham. See 2 Lutw. 1498, Kerby v. Whichdow. For a change of name, or a new charter, does not merge or extinguish their ancient privileges. Post, 344. No corporation can prescribe which has not existed im-memorially, and in the plea it must be shewn that it has so existed. As where to an action for seizing a ship, the defendant justified as bailiff to the corporation of Ipswich for toll, the plea was held bad, because a proscription was laid in the corporation without alleging that it was a corporation from time immemorial. 1 Ld. Raym. 558, Pitts v. Gainee. There is a difference between an action by and against a corporation : where a corporation brings an action for any due, it is sufficient to state in the declaration that it is an ancient borough, and the burgesses thereof have been a body politic and corporate, &c. and for divers years have been such body politic by the name of the mayor, &c. without setting out their names of incorporation, or any title to the duty; for the declaration being founded upon their possession, there is no necessity to state a title to the thing. Ow. 109, Escot v. Lanreny. Cro. Jac. 43, 123, Dent v. Oliver. 2 Vent. 291, Chapman v. Flex-man. But where an action is brought against a servant of a corporation (b) for (b) An action of trover [or of trespass. 5 Scott, N. E. 457, Maund v. Monmouthshire Canal] may be maintained against a corporation for a conversion by their order, and if it be necessary that such order should have been under their common seal, such order will be presumed after verdict. 16 East, 6, Yarborough v. Bank of England. [And a corporation, may, without deed, authorise an act of ordinary service, as to drive away cattle damage feasant, or make a distress, or the like. 1 A. & E. 526, Smith v. Birmingham Gas Company. 3 Nev. & M. 771, S. C. 6 M. & W. 821.] In general a corporation cannot bind themselves, except by deed under their common seal. But wherever an Act of Parliament authorises a corporation to draw and accept bills, they are liable to an action of assumpsit in the same manner as any other party to a bill. 2 Burr. 1216, Edie v. East India Company. 5 B. & A. 204, Murray v. East India Company; and see also 5 Taunt. 792, Slark v. Highgate Archway Company. 3 B. & A 1, Broughton v. Manchester Waterworks. [So a trading corporation may sue or be sued, in debt or assumpsit, on contracts for the sale of goods, at all events in casea where contracts of the kind are essential to the purposes for which the corporation was created. 2 C. & P. 365, City of London Gas Company v. Nicholls. 6 A. & E. 829, Beverley v. Lincoln Gas Company. 2 Nev. & P. 283, S. C. 6 A. & E. 846, Church v. Imperial Gas Company. 3 Nev. & P. 35, S. C. And in De Grave v. The Mayor and Corporation of Monmouth, 4 C. & P. Ill, the price of goods sold and delivered was recovered against a municipal corporation on a contract without deed. But in the late case of The Mayor, £c. of Ludlow v. Charlton, 6 M. & W. 815, it was held that a municipal corporation could not enter into a contract to pay a sum of money out of the corporate funds for the making of improvements within the borough, except under the common seal. And the Court of Exchequer laid down that the exceptions to the general rule that a corporation can only bind itself by deed, are confined to, 1. Cases so constantly recurring, or of so small importance, or so little admitting of delay, that to require, in every such case, the previous affixing of the seal, would be greatly to obstruct the every day ordinary convenience of the body corporate, without any adequate object; in which instances the head of the corporation is considered as delegated by the rest of the members to act for them. 2. The instances above mentioned of trading corporations. (See also 5 Bing. N. C. 262, 269-271, Gibson v. East India Company. 1 Scott, 74, S. C. accord.) This decision has been recognised and acted on by the Court of C. P. in Arnold v. Maym- ofPoole, 4 Mann. & Gr. 860, S. C. 5 Scott, N. E. 741, S. C. But it was recently held in Q. B. that where a municipal 1 WMS. BAUHD. MO. MICH. 21 CAR. II. REGIS 491 of man is not to the contrary, until the llth day of July in the 14th year of the reign of the Lord Charles the First late King of England, were a body politic and corporate by the name of the bailiffs and burgesses of the borough of Derby, and by the said taking any duty claimed by them, he must in his justification state their different names of incorporation, and set out with precision and exactness their title to the duty either by grant or prescription. If a corporation bring an action by a wrong name, the defendant can only take advantage of it by a plea in abatement. Bro. Misnomer, 73. 22 Edw. 4, 34. Bro. Brief, 402. 1 Bos. & Pull. Rep. C. P. 40, Mayor of Stafford v. Boulton; where in an action by the Mayor and Burgesses of the borough of Stafford for tolls, the declaration stated, that the plaintiffs for divers, to wit, fifty years last past, had been such body politic by the name of The Mayor and Burgesses of the borough of Stafford, and it appearing in evidence on the trial that their corporate name was " Mayor and Burgesses of the borough of Stafford in the county of Stafford," the learned Judge who tried the cause thought this a material variance, and nonsuited the plaintiffs: but the Court set aside the nonsuit upon the ground, that the omission, if at all material, which was much doubted, ought to have been pleaded in abatement.(c) In Lill. Ent. 4, Company of Stationers v. Tooke, there is a precedent of such a plea, and it is also pleaded in abatement in 10 Mod. 207, University of Cambridge v. Archbishop of York. The defendant can only plead nul tiel corporation in bar to an action by a corporation. Bro. Misnomer, 73. 22 Edw. 4, 34. Bro. Brief, 398. In misnomers of corporations there is a difference...
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