If fuch were the intention, they could not expect that the inclination of the court would be in their favour-generally speaking, the object of the laws, in civilized countries, was to secure to every fubject his rights, and to afford him protection when those rights were invaded; and that principle was founded in good sense: but this declaration did not complain of any injury having been done to any individuals; it only alleged that the defendants below difquieted the plaintiffs, and required of five citizens by name, certain tolls, and other duties; arguing from policy, the inclination of the court must be against such a proceeding as this; for if this action could be maintained against the corporation of Lynn, it might equally be fupported against any individual in the kingdom for the most minute toll, fuch as toll in a market; and it frequently happened that fuch tolls were in the hands of perfons who were neither able nor willing to difpute fuch a toll as the prefent. In point of policy therefore, it was to be wished that a party who had done no act to enforce his claim, and who would rather abandon his right than be at the expence of difputing it, should not be dragged against his will into a court of juftice, to agitate fpeculative questions of right. It must therefore be confidered whether the proceedings could be fupported by the precedents which had been cited on this very writ, or by arguments drawn from analogy to other proceedings of the fame nature. It was not neceffary to go through each of these, but the refult from them all was, that they complained of a damage to the party; and in the fubfequent proceedings on the writ, uniformly stated what the nature of that damage was: that Fitzherbert fays, in commenting on this writ, "and upon that he may have an alias and a pluries, and an attachment against those who take the toll;" and a complete answer was given to the arguments drawn from the precedents, by the counsel for the plain

tiffs in error; with respect to the comment of Lord Coke on the text of Littleton, it would be found on examination not to govern this cafe: the text was confined to the cafe of actual damage by diftrefs; it was thus, "and if he (the lord) doth not acquit him (the tenant), but suffereth him to be diftrained, &c. he fhall have against his lord a writ of mefne, and fhall recover against him his damages, &c." that Lord Coke does not comment on the section at large, but he comments in his usual manner, first on one part of it, and then on another; that in the course of his note on the writ of mefne, he enumerates other writs of prevention, of which the writ in question was not one: then having difiniffed thofe writs, he takes up the comment again on another part of the text, which applies only to the writ of mefne, and what he fays refpecting the judgment of acquittal, applies only to that writ: but the objection was not to the writ itself, but to the subsequent proceedings on it; and Lord Coke does not say that the tenant may count on that writ unlefs damage be done to him.

As to the third objection, the authority of Fitzherbert was cited, who fays (a), "the particular person who is grieved may fue forth the writ;" and, who, commenting on the writ de libertatibus allocandis, obferves that "those writs are of several forms, and may be fued by a body corporate, or by a fingle perfon, as the cafe fhall happen" (b). Here the corporation of London had fued out the writ, and alleged a grievance to five particular perfons, from whom the toll was demanded; but even if the corporation might have sued out the writ, the individuals who were injured fhould have counted. To this it was answered, that the precedents cited fhewed, that the action need not be brought by the party grieved; in (a) F. N. B. 228 B. (b) Id. 230.

that in Ryley it was not pretended that the abbot's goods were taken, and yet he brought the action; it was laid ad damnum ipfius et hominum fuorum, and the judgment was, that the abbot and all his men fhould go free. So, in the precedent in 2 Inft. the judgment was that all the tenants of the manor fhould be quit of toll. The action might be brought by those in whofe favour the exemption was claimed. This was the privilege of the citizens of London in their corporate capacity; it was granted to them in that capacity, though to be enjoyed by the individual members of it. It was a corporate franchise, for any injury to which they, as a corporation, had a right to complain; and Fitzherbert fays, "all the corporation may bring the writ by the name of the corporation” (a). and as to the argument, that though the corporation might fue out the writ, yet the individuals who were grieved should count upon it; it was answered that one party cannot declare on a writ fued out by another: but to this it was replied, that this was not like the cafe of one party declaring on a writ sued out by another; for that the plaintiff must count on the attachment, which should be fued out by the party grieved, though the writ of prohibition might be fued out by the corporation at large.

THAT part of the court who took notice of this objection (b), delivered their opinions to this effect: that the action was brought by the corporation at large, and not by the individuals; whereas the injury, if any, muft have been fuftained by the latter; that the corporation could not be injured as a corporation : it had indeed been urged, that in monftraverunt the corporation at large might declare; but how was that established? Fitzherbert, in every instance, except one, states that there must be an (a) Id. 227 E. (b) Ashhurst and Buller, J.

actual

actual diftrefs in order that the attachment may iffue, and that it must be stated to the damage of the perfons fuing; and in that one paffage he says, "if any city or borough ought to be quit of toll for the merchandizes which they buy in another town or place, if any of them be compelled to pay toll, all the corporation may bring the writ, by the name of their corporation, and may have an alias, and an attachment thereupon if need be, with these words at the end of the writ, et diftrictionem, fi quam eis ea occafione ftcerit, &c" (a). But even this fortified the first objection that the toll must be taken; and though he faid that the writ may be fued out by all the corporation, yet he did not fay that they might all maintain the action; so that all the paffages might be reconciled. The attachments spoken of by Fitzherbert were of two forts; one was in the nature of a criminal proceeding for a contempt in having difobeyed the King's writ; and that might be fued by all the corporation; the other was to bring the parties into court to answer in an action. And it was clear that the attachment which he mentions in the laft paffage, was the criminal attachment for a contempt; on which no further proceedings could be had.

To fhew the diftinction between these different attachments, a precedent was cited from Lord Hale's manuscripts, which was to this effect (b), "Eaft. 1 Ed. 2. Suffex.

(a) F. N. B. 227 E.

The

(b) Mr. J. Buller observed that this was an extract from a manufcript of Lord Hale's in Lincoln's Inn Library, containing "Placita coram Rege," from the 1ft to the 22d Ed. 2. Præceptum fuit ballivis Willielmi de Brewofa de Shoreham, quod defifterent capere theolonium ab Epifcopo Ciceftriæ et hominibus fuis, juxta chartam domin; Regis Henrici, proavi regis nunc, per quam quieti effe debent per totum regnum ; qui poft diverfa brevia eis miffa, tam de prohibitione

The bailiffs of William de Brewofa of Shoreham, were commanded to defift from taking toll of the bishop of Chichester and his men, according to a charter of King Henry, &c. by which they ought to be quit through the whole kingdom; who, after feveral writs fent to them, as well of prohibition as to answer, returned that no writ was ever sent to them in the time of the prefent King, and that they cannot deliver the distress taken from the men of thẹ faid bishop, because the said William and his ancestors, from time immemorial, hitherto were feised of toll of the men of the faid bifhop, and their predeceffors, notwithstanding the charter of King Henry aforefaid. And because the return aforefaid founds in contempt of the Lord the King, and to the damage of the said bishop and his men aforefaid, therefore let the sheriff be commanded to attach them, &c." This, it was faid, was clearly a criminal attachment: it deserved, therefore, to be confidered, whether there was not fomething further, which fhewed that that was not an action, at least by the perfons grieved. The perfons grieved were the bishop of Chichester or his men: but no precedent could be found to fhew that all a perfon's tenants, as fuch, can ftand in judgment in a court of law. And if any action had been brought in that cafe, it must have been by the bifhop or by the perfons whose goods were actually feized. And therefore, though civil

quam ad refpondendum, retornaverunt quod nunquam tempore regis nunc aliquod breve eis directum fuit, et quod diftri&tionem captam fuper homines dicti epifcopi fine exheredatione domini fui deliberare non poffunt, eo quod ipfe Willielmus et anteceffores fui, a tempore quo, &c. hucufque feifiti fuerunt de theolonio hominum dicti epifcopi, et prædecefforum fuorum, non obftante cartâ domini regis Henrici præditi. Et quia retornum prædictum fonat in contemptum domini regis, et dicti epifcopi et hominum fuorum prædictorum difpendium, ideo præceptum efto vicecomiti quod attachiet eos, &c.

6.

proceedings